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[ { "docid": "10873050", "title": "", "text": "The bankruptcy court in confirming the Chapter 13 plans expressly provided in its orders that the debt to Green Tree was a long term debt being maintained pursuant to § 1322(b)(5). After confirmation, each Debtor failed to make a payment in accordance with the plan. Green Tree filed motions for relief from the automatic stay in each case due to the defaults. The bankruptcy court, in denying Green Tree’s motions, modified the Debtors’ respective confirmed Chapter 13 plans to provide for the cure of the posteonfirmation arrearages. Green Tree appealed the bankruptcy court’s orders, and the district court affirmed. This appeal raises solely a question of law: whether the district court has authority to modify a confirmed Chapter 13 plan to allow the Debtor to cure a posteonfirmation default with reference to a secured claim on the Debtor’s house. We conclude that the district court has such authority. DISCUSSION In addressing the legal issue presented, we review the determinations of the bankruptcy and district courts de novo. In re Empire for Him, Inc., 1 F.3d 1156, 1159 (11th Cir.1993). Section 1322(b) of the Bankruptcy Code outlines the permissible contents of a plan, providing in pertinent part: (b) subject to subsections (a) and (c) of this section, the plan may— (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance- of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due. 11 U.S.C. § 1322 (emphasis supplied). Under 11 U.S.C. § 1329, the Debtor may modify a Chapter 13 plan at any" } ]

[ { "docid": "6543326", "title": "", "text": "and In re Simpkins, 16 B.R. 956 (Bankr.E.D.Tenn.1982). The Canipe court held: Section 1322(b)(5) of the Code does not expressly prohibit the inclusion of post-petition arrearages in the Plan. On the contrary, that section provides for the curing of “ ... any default ...” as part of the Chapter 13 Plan. This language certainly does not exclude arrearages which accrued after the filing, but before the 341(a) meeting. Section 1323 of the Code expressly and affirmatively permits a debtor to modify his Plan “ ... at any time before confirmation ...” and [the] Plan as modified becomes “the Plan.” Clearly, this provision gave the debtors the right to modify the Plan in February, 1982, to include the post-petition arrearages. Section 1305 of the Code permits a creditor to file a proof of claim for a post-petition debt “ ... that is for property or services necessary for the debtor’s performance under the plan.” Therefore, in order to read the provisions of sections 1323, 1322(b)(5), and section 1305(a)(2) consistently, this Court must conclude that section 1322(b)(5) allows the inclusion of post-petition arrear-ages, and it does so conclude. In Simpkins the court held (16 B.R. at 967): The plan should be able to provide for curing defaults that occur before its performance begins. Defaults thereafter are curable, but the question of whether cure should be allowed is different. The provision on not modifying the mortgagee’s rights generally means that the plan originally must provide for maintenance of regular payments. Failure of the trustee or the debtor to make the payments means that the debtor has failed to perform the plan. Of course, the mortgagee is not automatically entitled to foreclose, and the debtor may be allowed to cure the default. In support of its conclusion that the Bankruptcy Code allows cure of post-petition as well as pre-petition defaults, the Canipe court cited § 1305, permitting inclusion of post-petition claims in a Chapter 13 plan, and § 1323, permitting a debtor to modify a plan at any time before confirmation. This Court adds § 1329 to the litany: § 1329 specifically authorizes modification" }, { "docid": "12243072", "title": "", "text": "delay in payment. The Debtor relies on opinions from the Eleventh and Fifth Circuit Courts of Appeal, both holding that modification of a confirmed Chapter 13 plan for payment of post-petition -arrearages is permissible under § 1322(b). Green Tree Acceptance, Inc. v. Hoggle (In re Hoggle), 12 F.3d 1008 (11th Cir.1994); Mendoza v. Temple-Inland Mortgage Corp. (In re Mendoza), 111 F.3d 1264 (5th Cir.1997). Hoggle involves debtors in three different bankruptcy cases involving the same mort gage creditor. In all eases, the debtors were past due in paying the mortgage creditor at the time of their bankruptcy filings and agreed to cure their pre-petition arrearages through confirmed Chapter 13 plans. However, the debtors failed to make the required mortgage payments in accordance with plan terms, causing the mortgage creditor to seek relief from stay to foreclose its liens. The Bankruptcy Court denied the creditor’s requests for relief from stay, instead modifying the confirmed plans to cure the post-confirmation arrearages. The creditor appealed and the District Court affirmed. Before the Eleventh Circuit Court of Appeals, the parties made the same arguments advanced in this matter. The Eleventh Circuit concluded that both the express language of § 1322(b) and the general policy underlying § 1329 allows modifications to confirmed plans for the purpose of curing post-confirmation arrearages. Analyzing § 1322(b), the court concluded that: [S]ection 1322(b)(5) expressly authorizes plans to provide for the timely curing of any default and maintenance of payments during the life of the plan. Section 1322(b)(5) clearly states that a plan may provide for the curing of any default. Congress could have easily inserted the word pre-petition to modify default but failed to do so. The omission is significant. The plain meaning of § 1322(b)(5) permits cure of any default whether occurring pri- or to the filing of the petition or subsequent to confirmation of the plan. Hoggle at 1010. The Court also concluded that the language in § 1322(b)(5) is consistent with the legislative history of § 1329: Congress designed § 1329 to permit modification of a plan due to changed circumstances of the debtor unforeseen at" }, { "docid": "12243075", "title": "", "text": "modification to cure post-petition arrear-ages be effected within a reasonable time and that payments on long-term debt be kept current. Since Hoggle, more limitations to a debtor’s ability to modify a confirmed plan have emerged. The Eleventh Circuit Court of Appeals denied modification of a Chapter 13 plan to cure post-confirmation defaults in mortgage payments where the right to cure had expired under state law. Commercial Federal Mortgage Corp. v. Smith (In re Smith), 85 F.3d 1555 (11th Cir.1996). Bankruptcy courts have precluded post-confirmation modification to include post-petition debt in an existing Chapter 13 plan over the creditor’s objection (In re Haith, 193 B.R. 341 (Bankr.N.D.Ala.1995)) and required a debtor to show that a post-confirmation default was due to circumstances unforeseen and reasonably unforeseeable at the time of confirmation when a creditor objects to the post-confirmation modification (In re Steele, 182 B.R. 284 (Bankr.W.D.Okla.1995)). Chase Manhattan has proffered no authority contrary to Hoggle, and this Court has been unable to find binding authority on this issue within the Tenth Circuit. The careful analyses of the courts in Hoggle, Mendoza, and subsequent opinions persuade me that although modification of a Chapter 13 plan to cure a post-confirmation default is not specifically authorized by the Code, it is not precluded. For such post-confirmation modification to be approved, it must comport with the other applicable provisions of the Code. Thus, the focus of the inquiry is upon whether the proposed modification satisfies the original confirmation requirements referenced in § 1329. For example: 1. Is the proposed modification made in good faith? § 1329(b)(1); § 1325(a)(3). 2. If the plan is modified, will the debtor be able to make all payments under the plan? § 1329(b)(1); § 1325(a)(6). 3. Is the proposed cure made over a reasonable period of time while payments to the objecting creditor are kept current? § 1329(b)(1); § 1322(b)(5). 4. Is the proposed extension of the plan justified? § 1329(c). There is no dispute that the Debtor’s proposed modification is made in good faith and that cure of the arrearage to Chase Manhattan could not be accomplished without an extension" }, { "docid": "18536051", "title": "", "text": "Reform Act provided for post-confirmation modification of a Chapter 13 plan “[i]f a problem arises in the execution of the plan_” H.Rep. No. 95-595 p. 125 Bankr.L.Ed., Leg.Hist. § 82:4 (legislative history mentions catastrophic circumstances only when referring to “hardship discharge” allowed under 11 U.S.C. Section 1328(b)). Id. at 319-20. Accord: In re Evans, 77 B.R. at 459, supra. In addition, this Court agrees with the adoption by the Arnold court of the objective test set out in Fitak, 92 B.R. at 249-50 to determine whether a change is considered unanticipated. That test is, “whether a debtor’s altered financial circumstance could have been reasonably anticipated at the time of confirmation by the parties seeking modification.” (Emphasis in original). In’the specific area of post-confirmation modification to cure arrearages or defaults, not surprisingly, the results of the various courts have been not uniform. See, In re Hollis, 105 B.R. 1003, 1006-07 (N.D.Ala. 1989) (debtor cannot use post-confirmation modification to cure post-confirmation ar-rearages or to modify plan to make payments on a mortgage through trustee where original plan called for direct payments to creditor); In re Sensabaugh, 88 B.R. 95, 96 (Bankr.E.D.Pa.1988) (to allow modification to cure post-confirmation defaults within reasonable time subverts intent of § 1322(b)(5)); In re Mannings, 47 B.R. 318, 320-22 (Bankr.N.D.Ill.1985) (debt- or can modify plan to cure a post-petition mortgage arrearage when the debtor adequately explains the post-confirmation default); In re McCollum, 76 B.R. 797, 800-01 (Bankr.D.Or.1987) (Bankruptcy Code provision permitting plan to provide for curing of defaults is not limited to prepetition defaults or modify rights of holder of claims secured only Debtor’s marital residence); In re Davis, 110 B.R. 834, 835-37 (Bankr.W.D.Tenn.1989) (debtor permitted to cure post-confirmation default in home mortgage payments); In re Gadlen, 110 B.R. 341, 343-45 (Bankr.W.D.Tenn.1990) (post-confirmation modification to cure post-petition defaults possible, but may not change terms of mortgage payments). Any proposed post-confirmation modification of a plan that effects a claim that is secured only by a lien on the debt- or’s principal residence must take §§ 1322(b)(2), 1322(b)(3), and 1322(b)(5) into consideration as § 1329(b)(1) expressly requires a compliance with" }, { "docid": "12159640", "title": "", "text": "title 11.’ ”) (citing In re National Gypsum Co., 118 F.3d at 1064). The Fifth Circuit has also held that bankruptcy courts have subject matter jurisdiction over allegations of plan violations in the form of improper allocation of post-petition payments. In re Foster, 670 F.2d at 489-90. This Court’s In re Padilla decision previously found subject matter jurisdiction over allegations of violations of confirmed plans and Rule 2016. In re Padilla, 379 B.R. at 653 & n. 4. d. Subject Matter Jurisdiction Over Closed Cases With the exception of one named Plaintiff, Plaintiffs have received chapter 13 discharges and no longer have pending bankruptcy cases. Generally, after a bankruptcy case is closed, a bankruptcy estate no longer exists, and therefore, the bankruptcy court generally will not have subject matter jurisdiction. In re Bass, 171 F.3d at 1022. Nevertheless, bankruptcy courts retain significant jurisdiction after a discharge order is issued and a case is closed. The Court’s subject matter jurisdiction over closed cases extends to conduct that allegedly violated orders confirming plans and Rule 2016. As discussed earlier in this Memorandum Opinion, the fresh start is a principal purpose of chapter 13 of the Bankruptcy Code. Marrama, 127 S.Ct. at 1115. Section 1322(b)(5) and the confirmed plan bring debtors current on mortgage payments, providing the promised fresh start on home mortgage payments. Accordingly, the right to enforce a confirmed plan is one of the most important rights afforded debtors by chapter 13. The fresh start cannot be enforced without binding a creditor to the court confirmed plan. The Fifth Circuit has clarified that after a bankruptcy case is closed, a bankruptcy court nevertheless has subject matter jurisdiction to protect important debtor rights created by the Bankruptcy Code. In re Craig’s Stores of Tex., Inc., 266 F.3d 388, 390 (5th Cir.2001) (holding that bankruptcy courts retain subject matter jurisdiction over a discharged debtor with respect to “matters pertaining to the implementation of the plan”) (citing In re Fairfield Cmtys. Inc., 142 F.3d 1093, 1095 (8th Cir.1991); In re Johns-Manville Corp., 7 F.3d 32, 34 (2d Cir.1993); In re National Gypsum, 118 F.3d" }, { "docid": "18536060", "title": "", "text": "All Post-confirmation defaults must be cured. What may be a reasonable time to cure a default will depend upon the circumstances in an individual case. In no event may the period of time to cure the defaults continue beyond the length of the term of the plan. Id. 76 B.R. at 800-01. The district court affirmed a bankruptcy court’s decision to allow the cure of a post-confirmation default under appropriate circumstances in In re Bailey, 111 B.R. 151 (W.D.Tenn.1988). The District Court in Bailey stated: This was not a modification, rather it was an attempt to cure the post confirmation arrearages. Under 11 U.S.C. § 1322(b)(5), ‘the bankruptcy court may in the exercise of its equitable discretion give the debtor time in which to bring post petition arrearages current.’ In re Parker, 46 B.R. 106, 108 n. 1 (Bankr.N. D.Ga.1985). Even if the Bankruptcy Court order was interpreted as a modification of the Chapter 13 plan, there is law to suggest that in appropriate cases, Chapter 13 debtors may modify confirmed plans in order to pay off a post confirmation ar-rearage over the term of the plan. See In re Mannings, 47 B.R. 318 (Bankr.N.D.Ill.1985). Id. at p. 154. The Bankruptcy Court in In re Mannings, 47 B.R. 318 (Bankr.N.D.Ill.1985) permitted the debtors to cure a post-confirmation default in their mortgage payments through a modification of their confirmed plan and thereby “cram down” the modification over the mortgagee’s objection. The court described the process as follows: This court’s conclusion is premised in part upon the fact that in this situation, the debtor could apparently meet the criteria for refiling, including those set forth in section 109(f) of the Code. At least in cases like the present one, the court will allow a debtor situated similarly to the Mannings to amend a Chapter 13 plan to treat mortgage arrearages under the amended plan rather than force a refiling. Relevant considerations here include best interest of all creditors and the debtor, as well as judicial economy. (That is not to say that the court means to imply that it is utilizing the" }, { "docid": "18536059", "title": "", "text": "of a plan after confirmation to take into account changed circumstances. See 11 U.S.C. § 1329(a). The determination of whether the proposed modification should be approved is based upon the circumstances existing at the time of the proposed modification. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 431 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. Section 1329(b) requires that a modified plan meet the requirements of §§ 1322(a), (b) and (c) (sic) [§ 1323(c)] and 1325(a). Under § 1322(b)(5) a plan may “provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending * * It could be argued that § 1322(b)(5) applies only to pre-petition defaults. However, the statute is not specifically limited to pre-petition defaults and in fact provides for curing of “any defaults.” Nor does the inclusion of such a provision curing post-confirmation defaults in a plan constitute a modification of the creditor’s rights in contravention of § 1322(b)(2). The terms of the trust deed remain unchanged as to payment of future installments. All Post-confirmation defaults must be cured. What may be a reasonable time to cure a default will depend upon the circumstances in an individual case. In no event may the period of time to cure the defaults continue beyond the length of the term of the plan. Id. 76 B.R. at 800-01. The district court affirmed a bankruptcy court’s decision to allow the cure of a post-confirmation default under appropriate circumstances in In re Bailey, 111 B.R. 151 (W.D.Tenn.1988). The District Court in Bailey stated: This was not a modification, rather it was an attempt to cure the post confirmation arrearages. Under 11 U.S.C. § 1322(b)(5), ‘the bankruptcy court may in the exercise of its equitable discretion give the debtor time in which to bring post petition arrearages current.’ In re Parker, 46 B.R. 106, 108 n. 1 (Bankr.N. D.Ga.1985). Even if the Bankruptcy Court order was interpreted as a modification of the Chapter 13 plan, there is law to suggest that in appropriate cases, Chapter 13 debtors may modify confirmed plans in order to" }, { "docid": "21513633", "title": "", "text": "mortgage payments in Chapter 13 cases. These orders are deemed essential to avoid Chapter 13 debtors emerging from bankruptcy in default based upon post-petition increases to their mortgage debt service. Prior to these practice tools, Fed. R. Bankr.P. 2016 should have facilitated disclosure and would have applied equally to post-confirmation charges as to pre-confirmation charges. When lenders disclose post-petition charges to the debtor and the court by filing a Rule 2016 application, the assessment and collection of inspection fees, attorney’s fees, and other costs does not violate the stay. Rule 2016 does not conflict with § 1322(b)(2) because Rule 2016 does not deny lenders the ability to assess and collect post-petition contractual fees. Rather, Rule 2016 requires the lender to disclose the charges and receive court approval. The procedure protects both the lender and the borrower. It also protects against accruing an insurmountable deficit after a 60-month plan. As Padilla noted, the Court cannot administer an estate in an efficient and equitable manner without requiring creditors to file a Rule 2016(a) application for post-confirmation expenses to ensure creditors comply with plan confirmation. Further, post-petition fees and charges and post-petition defaults may be cured and paid under a modified plan. The right to modify a plan post-confirmation and the ability to address post-confirmation debt service increases is lost if lenders are allowed to keep debtors in the dark as to their true post-petition debt obligations. Without knowledge of escalating post-confirmation charges, debtors cannot protect their right to a fresh start after otherwise successfully emerging from Chapter 13. Everhome’s combination of servicing errors and RESPA violations robbed Debtors of a fundamental goal of bankruptcy — to emerge with a fresh start. Despite the fact Debtors’ plan allowed them to repay the pre-petition arrearage through the plan and make ongoing post-petition payments directly to Everhome, Everhome did not apply the payments it received accordingly. Everhome’s accounting system could not or would not adapt to the realities of the Debtor’s bankruptcy. The Trustee’s payments come at a time and in an amount dictated by Debtors’ confirmed plan. Thus, a payment from the Trustee is" }, { "docid": "10739805", "title": "", "text": "by curing defaults and maintaining payments under the chapter 13 plan. Id. at 530. As explained by the Fifth Circuit, a primary purpose of chapter 13 and § 1322(b)(5) is “to provide homeowners with the continuing right to cure defaults and preserve their primary asset.” Mendoza v. Temple-Inland Mortgage Corp. (In re Mendoza), 111 F.3d 1264, 1269 (5th Cir.1997). Section 1322(b)(5) allows mortgage payments to be cured and maintained, but does not provide a discharge mechanism. The applicable discharge provisions are contained in §§ 524 and 1328. Section 1328 “grants the debtor a discharge of most debts provided for by the chapter 13 plan” upon the completion of all plan payments. Rodriguez, 396 B.R. at 442. Upon the Court’s grant of a discharge order, the “debtor is immune from personal liability on any discharged debt.” Id. (emphasis added). The discharge order is effectuated through § 524’s discharge injunction, which bars creditors from attempting to collect a discharged debt. Id.; see also Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 449, 124 S.Ct. 1905, 158 L.Ed.2d 764 (2004) (“The discharge order releases a debtor from personal liability with respect to any discharged debt by voiding any past or future judgments on the debt and by operating as an injunction to prohibit creditors from attempting to collect or to recover the debt.”) (citations omitted). Plaintiffs claim that Countrywide violated the discharge order in their respective bankruptcy cases. However, the Bankruptcy Code does not provide that all debts are discharged in chapter 13. Id. Among other debts, § 1328(a) excepts any debt “provided for under section 1322(b)(5)” from discharge. 11 U.S.C. § 1328(a)(1). Read in concert with § 1322(a)(2), §§ 1322(b)(5) and 1328(a)(1) bar the discharge of home mortgage debts. Section 1322(a)(5) enables debtors to keep their homes by curing arrearages and maintaining plan payments. It provides the “continuing right” to maintain a mortgage account. Mendoza, 111 F.3d at 1269. But § 1328(a)(1) explicitly provides that ar-rearages are not discharged. Further, § 1322(a)(2) bars the chapter 13 plan from modifying the mortgage contract, except to bring debtors current under their contract. The" }, { "docid": "7205517", "title": "", "text": "is fixed or contingent. Arthur Andersen & Co. v. Perry Equip. Co., 945 S.W.2d 812, 818 (Tex.1997); Academy Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex.App.-Houston (14th Dist.) 2000, no pet.); see also In re Valdez, 324 B.R. 296, 300 (Bankr.S.D.Tex.2005) (in the context of § 506(b), whether fees and costs are reasonable requires a determination that the creditor’s action that resulted in such fees was of a kind that similarly situated creditors might reasonably conclude should be taken). To the extent that Wells Fargo or No-vastar collected attorneys’ fees that were not reasonable under Texas law, or inspection costs not authorized by their mortgage contracts, the lenders violated the Padillas’ and Sanders’ chapter 13 plans. Neither the chapter 13 Trustee, the Padil-las, nor Sanders can enforce the confirmed plans unless they are informed of the charges that Wells Fargo and Novastar allege should be paid. In furtherance of the Trustee’s and the Debtors’ ability to enforce orders confirming plans, the Bankruptcy Rules mandate the procedures set forth in Rule 2016(a). Rule 2016(a) applications are also necessary to ensure debtors can exercise their right to cure defaults. The Bankruptcy Code gives debtors the right to cure post-confirmation defaults at any point after confirmation. Section 1322(b)(5) allows debtors to cure defaults, “notwithstanding paragraph (2)”, the anti-modification provision. Furthermore, 1329(a) provides: “At any time after confirmation of the plan but before the completion of payments under such plan, the plan may be modified, upon request of the debtor 11. U.S.C. See also, In re Mendoza, 111 F.3d 1264 (5th Cir.1997); In re Jones 366 B.R. at 595-96 (citing In re Mendoza, 111 F.3d 1264); In re Hoggle, 12 F.3d 1008 (11th Cir.1994); In re Binder, 224 B.R. 483 (Bankr.D.Colo.1998); In re Comans, 164 B.R. 539 (Bankr.S.D.Miss.1994). The failure to pay post-petition Reimbursable Expenses may create a post-petition default. Mendoza, 111 F.3d 1264; Jones, 366 B.R. at 595-96. Debtors can not cure defaults pursuant to § 1325(b)(5) and § 1329(a) if lenders do not disclose the defaults. Most importantly, Rule 2016(a) ensures that the Debtors in these cases" }, { "docid": "7991859", "title": "", "text": "In re Mathews, 208 B.R. 506, 511 n. 6 (Bankr.N.D.Ala.1997) (listing cases holding that where there was equity in the collateral, the stay was not lifted or modified, despite missed payments after confirmation); In re Raymond, 99 B.R. 819, 822 (Bankr.S.D.Ohio 1989). Generally, before modifying or lifting a stay, a court should first weigh the equities by conducting a fact-specific analysis of the circumstances surrounding the default. In re Mendoza, 111 F.3d 1264, 1271 (5th Cir.1997) (citations omitted). After a hearing before the bankruptcy judge on the Motion for Relief from the Automatic Stay, the bankruptcy court ordered that the stay would be lifted unless the Nichols either (1) paid the amount in arrears within two weeks of the hearing or (2) filed a motion to modify its Chapter 13 plan to explain how it planned to pay what it owed to Americredit and the other creditors. See Transcript of hearing held January 7, 2004. Under the circumstances, we find no abuse of discretion in the bankruptcy court’s decision to deny the motion to lift the stay and allow debtors to file a proposed modification of the plan. III. Modification of the Plan The debtors chose to modify the plan pursuant to 11 U.S.C. § 1329. As stated above, section 1329(a) provides that prior to completion of payments under the plan, the debtor may request a modification of the plan to increase or decrease the amount of payments or extend or reduce the time for payments. Modification of the plan is one way a debtor may cure a post-confirmation default, provided that the plan, as modified, conforms with the requirements of §§ 1322(a) and (b) (contents of plan), and § 1325(a) (requirements for confirmation of plan). 11 U.S.C. § 1329(b); In re Hoggle, 12 F.3d 1008 (11th Cir.1994); In re Davis, 110 B.R. 834 (Bankr.W.D.Tenn.1989); but see In re Nicholson, 70 B.R. 398 (Bankr.D.Colo.1987) (disallowing modification to cure arrearag-es). A new “modified” Chapter 13 plan was drawn up whereby debtors would increase the weekly payments to the trustee, but, in accordance with the class priorities set out in the original" }, { "docid": "10739804", "title": "", "text": "precluding modification of the mortgage lender’s contractual rights. Accordingly, a chapter 13 plan may not reduce the lender’s claim to the value of the collateral under § 506. A plan may not alter the contractual interest rate. Nor may the plan exclude collection of fees and costs incurred post-petition and allowed by the mortgage contract. Id. at 529 (citations omitted). Section 1322(b)(2)’s broad prohibition of modifications to mortgage agreements is limited, however, by § 1322(b)(5), which permits certain narrow modifications. See Cano, 410 B.R. at 531 (“Section 1322(b)(2) prohibits a plan from modifying a mortgage lender’s contract rights other than the modifications allowed by § 1322(b)(5).”). Section 1322(b)(5), irrespective of the terms of the mortgage contract, allows modification of home mortgages for the purpose of enabling debtors to “cure mortgage arrearages and maintain current payments through a chapter 13 plan.” Id. at 529. Thus — even if the lender is entitled to accelerate the loan or foreclose on the home under the mortgage contract — § 1322(b)(5) gives debtors the opportunity to keep their homes by curing defaults and maintaining payments under the chapter 13 plan. Id. at 530. As explained by the Fifth Circuit, a primary purpose of chapter 13 and § 1322(b)(5) is “to provide homeowners with the continuing right to cure defaults and preserve their primary asset.” Mendoza v. Temple-Inland Mortgage Corp. (In re Mendoza), 111 F.3d 1264, 1269 (5th Cir.1997). Section 1322(b)(5) allows mortgage payments to be cured and maintained, but does not provide a discharge mechanism. The applicable discharge provisions are contained in §§ 524 and 1328. Section 1328 “grants the debtor a discharge of most debts provided for by the chapter 13 plan” upon the completion of all plan payments. Rodriguez, 396 B.R. at 442. Upon the Court’s grant of a discharge order, the “debtor is immune from personal liability on any discharged debt.” Id. (emphasis added). The discharge order is effectuated through § 524’s discharge injunction, which bars creditors from attempting to collect a discharged debt. Id.; see also Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 449, 124 S.Ct. 1905, 158" }, { "docid": "12159614", "title": "", "text": "are not discharged does not mean that the debts are not satisfied. When the plan is fully performed according to its terms, the arrear-age has been cured and the ongoing mortgage payments have been maintained. Sections 1322(b)(5) and 1322(e), allowing debtors to cure defaults and remain current on their mortgage obligations, and the Court Order that confirmed the plan and imposed the binding effect of a plan provided by § 1327(a), have the effect of bringing debtors current on their mortgage obligations. Alternative interpretations of §§ 1322(b)(5), 1322(c) and 1327(a) would emasculate the underlying fresh start purpose of chapter 13. Enforcement of the Court’s Order confirming a chapter 13 plan, §§ 1322(b)(5), 1322(c), and 1327(a), and the fresh start, all require enforcement of Rule 2016(a). Federal Rule of Bankruptcy Procedure 2016(a) requires any party who seeks compensation from a debtor’s estate to file with the court an application setting forth the source of the costs and the amounts requested. Accordingly, a mortgage lend er must file a Rule 2016 application before collecting any Reimbursable Expenses while a chapter 13 case remains pending. Absent the notice and court oversight triggered by Rule 2016(a), the debtor would have no knowledge of undisclosed, accruing fees charged to their account. The concepts of “curing” an arrearage and being able to maintain payments would be ephemeral. Collecting Reimbursable Expenses without filing a Rule 2016 application or after the completion of the debtors’ plan obligations would violate the order confirming the debtor’s chapter 13 plan. A mortgage lender may not disrupt the payment allocation scheme provided by the plan by diverting amounts dedicated to arrearages or principal and interest without court approval. Until the Court reviews a Rule 2016 application and issues an order modifying the payment allocation scheme provided by a chapter 13 plan, a mortgage lender may not collect Reimbursable Expenses without violating the order confirming the debtor’s plan. Chapter 13 and the fresh start purpose do not allow a lender to place a former debtor in default and foreclose on a debt- or’s home for non-disclosed charges that accrued during the course of" }, { "docid": "13836407", "title": "", "text": "to avoid, i.e. manipulation of the Bankruptcy Code provisions through defaults, dismissals and serial filings to obtain what was prohibited to do in a single case. Id. at 554. DEBTORS’ PLAN MAY NOT MODIFY A MORTGAGE HOLDER’S RIGHT TO TIMELY PAYMENT EXCEPT TO “CURE” PRE-PETITION DEFAULTS WITHIN A REASONABLE TIME Bankruptcy Code §§ 1322(b)(2) and (5) provide that debtor’s plan may not modify the rights of a creditor secured by a mortgage in debtor’s residence except that the debtor may cure pre-petition defaults within a reasonable time. Debtors are not permitted to cure post-petition defaults through a plan or plan modification. In re Hollis, 105 B.R. 1003, 1005 (N.D.Ala.1989) (citing In re Nicholson, 70 B.R. 398, 401 (Bankr.D.Colo.1987)); see also In re Cotton, 102 B.R. 891, 892 (Bankr.M.D.Ga. 1989). Can a debtor defeat the requirements of § 1322(b)(2) and (5), i.e. pay post-petition defaults through a Chapter 13 plan, by failing to make residential mort gage payments in his or her first case, suffering a dismissal, then refiling a second Chapter 13 case, and proposing to pay first case “post-petition” default payments in the second case as “pre-petition” default payments through the plan and over the ensuing 36 months? This was the issue raised and discussed by the District Court in In re Jones, 105 B.R. 1007 (N.D.Ala. 1989). In Jones, debtor filed a petition under Chapter 13 on December 19, 1985. At the time of the filing, arrearages to the mortgage-holder bank were $1,383. During the course of the case, debtor defaulted several times in making his post-petition payments to the bank. Because of these defaults, the bank brought three separate motions for relief from stay, all but the last of which was denied by the bankruptcy judge who simply ordered the defaulted payments to be paid through the plan. On January 30, 1989, at the third hearing, the court dismissed the case on the Trustee’s recommendation that the plan, previously confirmed, was “not feasible”. Two days after the dismissal, debtor filed a new Chapter 13 petition. At this time the “ar-rearages” to the bank were $6,925 — $5,542" }, { "docid": "7205518", "title": "", "text": "2016(a). Rule 2016(a) applications are also necessary to ensure debtors can exercise their right to cure defaults. The Bankruptcy Code gives debtors the right to cure post-confirmation defaults at any point after confirmation. Section 1322(b)(5) allows debtors to cure defaults, “notwithstanding paragraph (2)”, the anti-modification provision. Furthermore, 1329(a) provides: “At any time after confirmation of the plan but before the completion of payments under such plan, the plan may be modified, upon request of the debtor 11. U.S.C. See also, In re Mendoza, 111 F.3d 1264 (5th Cir.1997); In re Jones 366 B.R. at 595-96 (citing In re Mendoza, 111 F.3d 1264); In re Hoggle, 12 F.3d 1008 (11th Cir.1994); In re Binder, 224 B.R. 483 (Bankr.D.Colo.1998); In re Comans, 164 B.R. 539 (Bankr.S.D.Miss.1994). The failure to pay post-petition Reimbursable Expenses may create a post-petition default. Mendoza, 111 F.3d 1264; Jones, 366 B.R. at 595-96. Debtors can not cure defaults pursuant to § 1325(b)(5) and § 1329(a) if lenders do not disclose the defaults. Most importantly, Rule 2016(a) ensures that the Debtors in these cases receive their “fresh start”. A primary purpose of the Bankruptcy Code is to grant debtors a “fresh start” after completing a chapter 13 plan. Marrama, 127 S.Ct. at 1115 (“the Bankruptcy Code is intended to give a ‘fresh start’ to the ‘honest but unfortunate debtor’ ”) (citing Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)); In re Tucker, 224 F.3d 766 (table), 2000 WL 992448 at *1 (5th Cir.2000) (noting that the Bankruptcy Code has a “policy of encouraging ‘fresh starts’ and therefore of discouraging harassment of an unwilling Debtor by an overzealous creditor”). Debtors cannot realistically obtain a “fresh start” if mortgage lenders can charge a debtor’s account without disclosure. The Padillas have completed all payments required by their confirmed plan. After completing all required payments— and with no pending Rule 2016(a) applications — the Padillas allege that they are now informed by Wells Fargo that their mortgage is in default. Without the disclosure that is inherent in Rule 2016(a), the Padillas cannot get a fresh start. Life" }, { "docid": "7205519", "title": "", "text": "receive their “fresh start”. A primary purpose of the Bankruptcy Code is to grant debtors a “fresh start” after completing a chapter 13 plan. Marrama, 127 S.Ct. at 1115 (“the Bankruptcy Code is intended to give a ‘fresh start’ to the ‘honest but unfortunate debtor’ ”) (citing Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)); In re Tucker, 224 F.3d 766 (table), 2000 WL 992448 at *1 (5th Cir.2000) (noting that the Bankruptcy Code has a “policy of encouraging ‘fresh starts’ and therefore of discouraging harassment of an unwilling Debtor by an overzealous creditor”). Debtors cannot realistically obtain a “fresh start” if mortgage lenders can charge a debtor’s account without disclosure. The Padillas have completed all payments required by their confirmed plan. After completing all required payments— and with no pending Rule 2016(a) applications — the Padillas allege that they are now informed by Wells Fargo that their mortgage is in default. Without the disclosure that is inherent in Rule 2016(a), the Padillas cannot get a fresh start. Life in a chapter 13 case is not a mere inconvenience. If the Padillas have paid all of the cure payments required by their plan, Wells Fargo may not deny them the fresh start to which they are entitled. Although Sanders has not yet completed the payments required by her confirmed plan, her situation is alleged to be no less dire. She looks ahead to the termination of her plan with the fear that undisclosed fees and expenses could put her in immediate jeopardy of foreclosure upon completion of her chapter 13 plan. Based on the foregoing, Rule 2016(a) applies post-confirmation to mortgage lenders who seek to collect Reimbursable Expenses allowed by their pre-petition contract. Wells Fargo and Novastar deny collecting undisclosed charges. They allege that the Reimbursable Expenses were merely recorded on their internal records, with no charges imposed against the Padil-las or Sanders. The Bankruptcy Code does not prohibit Wells Fargo or Novastar from maintaining internal records of costs incurred. Based on the summary evidence, the Court cannot determine whether charges have actually been" }, { "docid": "8525906", "title": "", "text": "claim states that the Tre-vinos owed $19,685.50 in arrearages at the time of filing. (ECF No. 1 at 8). Although the Trevinos are attempting to cure the default over 55 months of their chapter 13 plan, their mortgage was hot yet cured when it was acquired by mov-ants. Nor do they cite to any authority supporting the position that confirmation of a debtor’s chapter 13 bankruptcy plan cures the mortgage for purposes of determining holder in due course status. Instead, movants cite Wells Fargo Bank, N.A. v. Jones, where the Court stated that Wells Fargo should have “treated'the [debtor’s] loan current as of the petition date.” Wells Fargo Bank, N.A. v. Jones, 391 B.R. 577, 604 (E.D.La.2008). The Jones court was simply stating that payments for the debtor’s mortgage arrearages should be paid through the chapter 13 trustee, while payments for the ongoing, post-petition mortgage payments should be deemed current as long as the debtor made all of those payments. U.S. Bank and Caliber also cite In re Mendoza to support their holder in due course argument. Mendoza v. Temple-Inland Mortg. Co. (In re Mendoza), 111 F.3d 1264, 1267 (5th Cir.1997). In Mendoza, the Fifth Circuit stated that a debtor’s proposed plan modification should “comport with § 1322(b)(5)’s requirement that such a cure be effected within a reasonable time and simultaneously maintain current payments on any long term secured loan.” Id. The Fifth Circuit’s statement that a “cure be effected within a reasonable time” indicates that performance under the plan, not confirmation of the plan, effects a cure. The Chapter 13 plan is meant to allow debtors to cure overdue mortgages, while keeping their homes and making ongoing mortgage payments. It is settled law that the mortgage is not cured until the plan is fully performed. See Rodriguez v. Countrywide Home Loans, Inc. (In re Rodriguez), 396 B.R. 436, 442 (Bankr.S.D.Tex.2008) (stating “[w]hen the plan is fully performed according to its terms, the arrearage has been cured and the ongoing mortgage payments have been maintained.”). Accordingly, the Court finds that U.S. Bank and Caliber are not holders in due course" }, { "docid": "13836406", "title": "", "text": "payments extend more than five years. 11 U.S.C. § 1322(c). Therefore, in every case a ‘reasonable time’ must be five years or less.... Yet if this Court were to confirm the present plan, the Debtor and her husband jointly would have been allowed about seven and one-half years to cure the arrearage. Thus, the Jack-sons’ would have achieved in four cases (the first three of which failed) what Congress has prohibited a debtor from doing in one case. Attempts to use serial filings to achieve purposes otherwise unattainable under the Bankruptcy Code have been characterized as ‘bad faith’ by other Courts.’ Jackson, supra at 474. The court adopts that reasoning here. Therefore, this Debtor’s Plan, being his second five year plan, cannot be confirmed as, combined with the Plan in his immediately preceding Chapter 13 case (this one having been filed serially), the total plan payment period exceeds five years. To rule otherwise would allow this Debtor to gain from his prior default. To rule otherwise would open the door for exactly what Congress sought to avoid, i.e. manipulation of the Bankruptcy Code provisions through defaults, dismissals and serial filings to obtain what was prohibited to do in a single case. Id. at 554. DEBTORS’ PLAN MAY NOT MODIFY A MORTGAGE HOLDER’S RIGHT TO TIMELY PAYMENT EXCEPT TO “CURE” PRE-PETITION DEFAULTS WITHIN A REASONABLE TIME Bankruptcy Code §§ 1322(b)(2) and (5) provide that debtor’s plan may not modify the rights of a creditor secured by a mortgage in debtor’s residence except that the debtor may cure pre-petition defaults within a reasonable time. Debtors are not permitted to cure post-petition defaults through a plan or plan modification. In re Hollis, 105 B.R. 1003, 1005 (N.D.Ala.1989) (citing In re Nicholson, 70 B.R. 398, 401 (Bankr.D.Colo.1987)); see also In re Cotton, 102 B.R. 891, 892 (Bankr.M.D.Ga. 1989). Can a debtor defeat the requirements of § 1322(b)(2) and (5), i.e. pay post-petition defaults through a Chapter 13 plan, by failing to make residential mort gage payments in his or her first case, suffering a dismissal, then refiling a second Chapter 13 case, and proposing" }, { "docid": "18609096", "title": "", "text": "in a plan constitute a modification of a creditor’s rights in contravention of § 1322(b)(2). The term of the trust deed remain unchanged as to payment of future installments. All post-confirmation defaults must be cured. What may be a reasonable time to cure a default will depend upon the circumstances in an individual case. In no event may the period of time to cure the defaults continue beyond the length of the term of the plan. “In view of the rehabilitative purpose of chapter 13, it is the court’s opinion that §§ 1329, 1322(b)(2) and (5) permit the court to approve the modification of a plan to take into account post-confirmation defaults in payment to a creditor secured only by the debtor’s residence. The court finds that the modified plan dated May 5, 1987 complies with the provisions of § 1322 and § 1325 and should be approved.” See also, e.g., In re Mannings, 47 B.R. 318 (Bankr.Ct.N.D.Ill.1985); In re Canipe, 20 B.R. 81 (Bankr.Ct.W.D.N.C.1982); In re Simpkins, 16 B.R. 956 (Bankr.E.D.Tenn.1982). Con tra, the Hollis case cited in Leader Federal’s prehearing brief. In In re Bailey, Case No. 83-20623-K (W.D.Tenn.1986) (unpublished opinion) this court essentially held, inter alia, that under appropriate circumstances chapter 13 debtors may cure postconfirmation defaults on their home mortgage payments by virtue of § 1322(b)(5) and equitable principles. In affirming the Bailey opinion, the Honorable Robert M. McRae, Senior United States District Judge for this Judicial District, in Civil Action No. 87-2042-4A (W.D.Tenn. 1988) (unpublished opinion attached), stated as follows at p. 6: “... This is not a modification, rather, it was an attempt to cure the post confirmation arrearages. Under 11 U.S.C. § 1322(5)(b), ‘the bankruptcy court may in the exercise of its equitable discretion give the debtor time in which to bring post petition arrearages current.’ In re Parker, 46 B.R. 106, 108 fn. 1 (Bankr. N.D.Ga.1985.) “Even if the Bankruptcy Court order was interpreted as a modification of the Chapter 13 plan, there is law to suggest that in appropriate cases, Chapter 13 debtors may modify confirmed plans in order to pay" }, { "docid": "12243071", "title": "", "text": "modify a confirmed Chapter 13 plan to cure a post-confirmation arrearage? Modification of a confirmed Chapter 13 plan is governed by 11 U.S.C. § 1329 which allows certain types of modification, provided that the modification comports with the provisions of § 1322(a) and (b), § 1323(c), and § 1325(a). These cross-references require that any plan modification satisfy the standards for plan confirmation in the first instance. In addition, the term of a modified plan cannot extend beyond three years from the first payment -in the case, except for cause, and under no circumstances can the plan extend beyond five years from the date of the first payment. 11 U.S.C. § 1329(c). The proposed modification would cure the post-petition arrearages owed to Chase Manhattan over 52 months. The dispute is whether such modification satisfies the requirements of § 1322(b). Without reference to statutory or case authority, Chase Manhattan argues that modification to cure post-petition arrearages is not permitted by § 1322(b), and that cure of the existing ar-rearage over 52 months would result in an unreasonable delay in payment. The Debtor relies on opinions from the Eleventh and Fifth Circuit Courts of Appeal, both holding that modification of a confirmed Chapter 13 plan for payment of post-petition -arrearages is permissible under § 1322(b). Green Tree Acceptance, Inc. v. Hoggle (In re Hoggle), 12 F.3d 1008 (11th Cir.1994); Mendoza v. Temple-Inland Mortgage Corp. (In re Mendoza), 111 F.3d 1264 (5th Cir.1997). Hoggle involves debtors in three different bankruptcy cases involving the same mort gage creditor. In all eases, the debtors were past due in paying the mortgage creditor at the time of their bankruptcy filings and agreed to cure their pre-petition arrearages through confirmed Chapter 13 plans. However, the debtors failed to make the required mortgage payments in accordance with plan terms, causing the mortgage creditor to seek relief from stay to foreclose its liens. The Bankruptcy Court denied the creditor’s requests for relief from stay, instead modifying the confirmed plans to cure the post-confirmation arrearages. The creditor appealed and the District Court affirmed. Before the Eleventh Circuit Court of Appeals, the" } ]

[ { "docid": "22760031", "title": "", "text": "689 (1985). While these two lines of authority do not of course govern here, we think it would be incompatible with the asserted “subordinate position [of commercial speech] in the scale of First Amendment values” to apply a more rigid standard in the present context. None of our cases invalidating the regulation of commercial speech involved a provision that went only marginally beyond what would adequately have served the governmental interest. To the contrary, almost all of the restrictions disallowed under Central Hudson’s, fourth prong have been substantially excessive, disregarding “far less restrictive and more precise means.” Shapero v. Kentucky Bar Assn., 486 U. S., at 476. See, e. g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985); In re R. M. J., 455 U. S. 191 (1982); Bates v. State Bar of Arizona, 433 U. S. 350 (1977). On the other hand, our decisions upholding the regulation of commercial speech cannot be reconciled with a requirement of least restrictive means. In Posadas, for example, where we sustained Puerto Rico’s blanket ban on promotional advertising of casino gambling to Puerto Rican residents, we did not first satisfy ourselves that the governmental goal of deterring casino gambling could not adequately have been served (as the appellant contended) “not by suppressing commercial speech that might encourage such gambling, but by promulgating additional speech designed to discourage it.” 478 U. S., at 344. Rather, we said that it was “up to the legislature to decide” that point, so long as its judgment was reasonable. Ibid. Similarly, in Metromedia, Inc. v. San Diego, 453 U. S., at 513 (plurality opinion), where we upheld San Diego’s complete ban of off-site billboard advertising, we did not inquire whether any less restrictive measure (for example, controlling the size and appearance of the signs) would suffice to meet the city’s concerns for traffic safety and esthetics. It was enough to conclude that the ban was “perhaps the only effective approach.” Id., at 508. And in San Francisco Aids & Athletics, Inc. v. United States Olympic Committee, 483 U. S., at" } ]

[ { "docid": "22900498", "title": "", "text": "held — in Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976)— that speech that does no more than propose a commercial transaction still \"enjoys a substantial degree of First Amendment protection.\" Metromedia, Inc., 453 U.S. at 505, 101 S.Ct. at 2891. The Court explained: So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispens-able_And if it is indispensable to the proper allocation of resources in a free enterprise system, it is also indispensable to the formation of intelligent opinions as to how that system ought to be regulated or altered. Virginia Pharmacy Bd., 425 U.S. at 765, 96 S.Ct. at 1827 (citations omitted). . Although we can \"contemplate public controversies arising from commercial conduct” that might necessitate a different result, Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 590-91 (1st Cir.1980), we do not find that here. . In so arguing, Sullivan relied on Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), which held that commercial speech receives no constitutional protection. As noted, not until a decade after New York Times did the Court expressly extend First Amendment protection to commercial speech. See Virginia Pharmacy Bd., 425 U.S. at 755-70, 96 S.Ct. at 1822-30. . As we have noted, the Supreme Court cases on commercial speech all involve some form of government regulation of speech. See, e.g., Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986) (Puerto Rican statute prohibiting local casinos from advertising their gambling facilities to Puerto Rican residents); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985) (regulation of attorney advertisements by state bar association); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 103 S.Ct. 2875," }, { "docid": "3887253", "title": "", "text": "that regard are commercial speech. “The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading.” Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652 (1985); see also Central Hudson, 447 U.S. at 563-64, 100 S.Ct. at 2350 (“The government may ban forms of communication more likely to deceive the public than to inform it, ... or commercial speech related to illegal activity— ” (citations omitted)); In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64 (1982) (“Misleading advertising may be prohibited entirely.”). Because the injunction at issue merely restrains Kaun from advertising, marketing, and selling materials that are based on false and misleading theories under the guise of tax advice, Kaun’s First Amendment claim fails. Similarly, the third paragraph of the injunction, to the extent that it restricts speech at all, restricts only speech used to further an illegal activity — namely, the preparation of a false income tax return. This type of speech is not constitutionally protected. See United States v. Buttorff 572 F.2d 619, 624 (8th Cir.), cert. denied, 437 U.S. 906, 98 S.Ct. 3095, 57 L.Ed.2d 1136 (1978) (A criminal conviction for aiding and abetting the filing of fraudulent withholding statements was upheld against First Amendment challenge where the defendants had explained how to prevent the government from withholding taxes, “and their speeches and explanations incited several individuals to activity that violated federal law and had the potential of substantially hindering the administration of the revenue.”); see also United States v. Freeman, 761 F.2d 549, 552 (9th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1982, 90 L.Ed.2d 664 (1986). (“[W]here speech becomes an integral part of the crime, a First Amendment defense is foreclosed even if the prosecution rests on words alone.”). C. The fourth and fifth paragraphs of the injunction, respectively, prohibit Kaun from filing Freedom of Information Act requests with the Internal Revenue Service, and from filing or helping to file any litigation based on frivolous claims with respect to federal" }, { "docid": "16910042", "title": "", "text": "categories ... may be regulated if the government satisfies [Central Hudson’s remaining three prongs].” (citation omitted)); Ibanez v. FI. Dep’t of Bus. & Prof'l Regulation, Bd. of Accountancy, 512 U.S. 136, 142, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994) (“[O]nly false, deceptive, or misleading commercial speech may be banned”). The Supreme Court has also emphasized that “States may not place an absolute prohibition on certain types of potentially misleading information ... if the information also may be presented in a way that is not deceptive.” In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982); see also, e.g., Peel v. Attorney Registration & Disciplinary Comm’n of Ill., 496 U.S. 91, 100-01, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990); Shapero v. Ky. Bar Ass’n, 486 U.S. 466, 479, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988); Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 644, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). We conclude from these precedents that the Central Hudson analysis applies to regulations of commercial speech that is only potentially misleading. The speech that Defendants’ content-based restrictions seeks to regulate — that which is irrelevant, unverifiable, and non-informational — is not inherently false, deceptive, or misleading. Defendants’ own press release described its proposed rules as protecting consumers against “potentially misleading ads.” This is insufficient to place these restrictions beyond the scope of First Amendment scrutiny. There is one exception to this conclusion. Subsection 1200.50(c)(3) prohibits “the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case.” N.Y. Comp.Codes R. & Regs., tit. 22, § 1200.50(c)(3). The District Court invalidated § 1200.50(c)(3) in its entirety. Alexander, 634 F.Supp.2d at 249. Plaintiffs acknowledge, however, that they intended to challenge only the first clause of this subsection' — prohibiting portrayals of judges — and they do not oppose Defendants’ appeal seeking reinstatement of the prohibition on fictitious firms. The provision prohibiting advertisements" }, { "docid": "8501865", "title": "", "text": "protected by the First Amendment right to commercial speech. This requires the expression at issue to propose a commercial transaction that is not unlawful or misleading. Central Hudson at 566, 100 S.Ct. 2343. The second prong requires a court to ask whether the government has a substantial interest. Id. If both inquiries are positive, then the third and fourth prongs look to whether the regulation directly advances the governmental interest asserted and whether the regulation is narrowly drawn. Id. In Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 477, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989), the Court noted that a narrowly drawn regulation does not have to be the least restrictive means, but rather be “something short of a least-restrictive-means standard.” However, In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985) the Court addressed the validity of a state statute that compelled the disclosure of possible litigation costs in attorney advertisements. The Court recognized that disclosure requirements implicated the attorney’s First Amendment right, but refused to hold the requirement unconstitutional. Instead, the Court applied the rational basis test and held that an “advertiser’s rights [were] adequately protected as long as disclosure requirements [were] reasonably related to the [s]tate's interest in preventing deception of consumers.” Id. at 651, 105 S.Ct. 2265. This standard will not inhibit the government’s ability to regulate deceptive advertising since it would allow the government to pass legislation to address problems one piece at a time. Id. at 651, n. 14, 105 S.Ct. 2265. But, in Riley v. National Federation of the Blind, 487 U.S. 781, 796, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988), the Court applied strict scrutiny and invalidated a regulation requiring disclosure of the amount of contributions that were actually turned over to charity. But the Zauderer decision is more closely matched factually with the present case. And the Court in Riley also stated that the regulation applied to non-commercial speech. Thus, it appears that the rational basis test applies, but even if intermediate scrutiny of Central Hudson applied," }, { "docid": "18737058", "title": "", "text": "that a non-elected judiciary, unaware of the considerations that led to adoption of the compromise in the first place and ignorant of the consequences likely to follow from its abrogation, ought not to take the drastic step of invalidating the legislative solution unless there is no conceivable basis on which it can be squared with the language of the Constitution. Although advertising is entitled to the protection of the First Amendment, even when the “product” advertised consists of professional services, the constitutional protection accorded such “commercial speech” is less extensive than that afforded speech of a kind not traditionally subject to government regulation. Ohralik v. Ohio State Bar Association, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978); Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 562-63, 100 S.Ct. 2343, 2349-50, 65 L.Ed.2d 341 (1980); Zauderer v. Office of Disciplinary Council, 471 U.S. 626, 637, 105 S.Ct. 2265, 2274, 85 L.Ed.2d 652, 663 (1985). Permissible restrictions on commercial speech include, but are not limited to, “time, place and manner” regulations, prohibitions against advertising that is false or deceptive, and strictures against advertising that proposes an illegal transaction. Virginia Pharmacy, 425 U.S. at 770-71, 96 S.Ct. at 1829-30; Pittsburgh Press Co. v. Human Relations Commission, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973). This list of permissible restrictions is illustrative, not exclusive. Virginia Pharmacy, 425 U.S. at 770, 96 S.Ct. at 1829. It is true that the Supreme Court, in In re R.M.J., 96 S.Ct. at 1829, “went so far as to state that ‘States may not place an absolute prohibition on certain types of potentially misleading information [e.g., a listing of areas of practice,] if the information also may be presented in a way that is not deceptive,’ ” Zauderer, 471 U.S. at 644, 105 S.Ct. at 2278, 85 L.Ed.2d at 668, quoting In re R.M.J., 455 U.S. at 203, 102 S.Ct. at 937, but this “dictum”, as Zauderer calls it, does not require us to invalidate a prohibition on the listing of areas of practice by" }, { "docid": "12654264", "title": "", "text": "arguably more government-friendly, precedent urged by Arizona. We will therefore apply that precedent and defer extended discussion of Sorrell for a more appropriate case with a more fully developed factual record. We turn to each of Central Hudson’s four prongs in turn. A. Day Laborer Solicitation Is Neither Misleading nor Related to Unlawful Activity Commercial speech merits First Amendment protection only if “the communication is neither misleading nor related to unlawful activity.” World Wide Rush, 606 F.3d at 684 (quoting Metro Lights, 551 F.3d at 903). Arizona argues that the day labor provisions are permissible because they regulate speech only when associated with the unlawful activity of blocking or impeding traffic. Arizona’s proposed, rule would be a novel extension of Central Hudson’s legality requirement, which has traditionally focused on the content of affected speech — i.e., whether the speech proposes an illegal transaction— instead of whether the speech is associated with unlawful activity. See Wash. Mercantile Ass’n v. Williams, 733 F.2d 687, 691 (9th Cir.1984) (rejecting the argument that drug paraphernalia’s association with illegal drug use allows the state to restrict all paraphernalia advertising; instead holding that paraphernalia advertising is not protected in states where such sales are illegal but that paraphernalia advertising warrants First Amendment scrutiny if the advertising proposes a sale in a state where such sales are legal). Some decisions have expressly phrased the legality requirement as whether “the transactions proposed in the forbidden [communication] are themselves illegal in any way.” Va. State Bd. of Pharmacy, 425 U.S. at 772, 96 S.Ct. 1817; see also Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 638, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985) (“The States and the Federal Government are free to prevent the dissemination of commercial speech that ... proposes an illegal transaction....”). Other decisions have used Central Hudson's more general “related to unlawful activity” language. Cent. Hudson, 447 U.S. at 564, 100 S.Ct. 2343; see also Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623-24, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995) (“Under Central Hudson, the government may freely" }, { "docid": "2380540", "title": "", "text": "is misleading or potentially misleading. The district court conducted a mini-trial wherein the Bar presented only one witness in support of its position. Elizabeth Tarbert (“Ms. Tarbert”), the Bar’s director of ethics and advertising, testified to the Bar’s interests in promulgating the rule, and its belief that Mason’s reference to Martindale Hubbell would mislead the unsophisticated public. The district court found in favor of the Bar and upheld Rule 4-7.2(j) against both of Mason’s challenges. II. This court reviews de novo the question of whether state restrictions on commercial speech are constitutional. See Falanga v. State Bar of Georgia, 150 F.3d 1333, 1335-36 (11th Cir.1998), cert. denied, — U.S. , 119 S.Ct. 1496, 143 L.Ed.2d 651 (1999). The determination of whether a statute is unconstitutionally vagué is also subject to de novo review in this court. See Wilson v. State Bar of Georgia, 132 F.3d 1422, 1427 (11th Cir.1998). A. On appeal, Mason contends that the Bar has no substantial state interest in regulating his advertisement because his advertisement is neither inherently nor potentially misleading. Mason further argues that even if the state does have a substantial interest, the Bar failed to produce sufficient evidence to justify its restrictions on his speech. Commercial speech, expression inextricably related to the economic interests of the speaker and audience, is undeniably entitled to substantial protection under the First and Fourteenth Amendments of the United States Constitution. See Ibanez v. Florida Dep’t of Bus. & Prof'l Regulation, 512 U.S. 136, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994); Edenfield v. Fane, 507 U.S. 761, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993); Peel v. Attorney Registration & Disciplinary Comm’n, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990); Board of Trustees v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989); Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); Virginia" }, { "docid": "6097938", "title": "", "text": "premature because plaintiffs had never applied for possibly available variances and hence had never obtained a final decision from the local agency. Id. at 200, 105 S.Ct. at 3123. Williamson involved constitutional challenges under the fifth amendment Just Compensation Clause and the fourteenth amendment Due Process Clause, whereas plaintiffs in the instant case mount a first amendment attack on the revised advertising rule. We do not, however, view this difference as dispositive for purposes of analysis of the ripeness question. Although the first amendment affords protection to commercial speech, commercial speech traditionally is more susceptible to government regulation than other forms of protected speech because it is considered more objectively verifiable, Virginia St. Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771-72 n. 24, 96 S.Ct. 1817, 1830-31 n. 24, 48 L.Ed.2d 346 (1976), because it is more durable than other forms of speech, id., and because it may be of less constitutional moment, Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U.S. 557, 562-63 & n. 5, 100 S.Ct. 2343, 2349-50 & n. 5, 65 L.Ed.2d 341 (1980). See also Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 106 S.Ct. 2968, 2982, 92 L.Ed.2d 266 (1986). In this regard, we note that the Supreme Court has repeatedly suggested that in the area of commercial speech, prescreening or prepu-blication review of advertisements may be constitutionally sound. See, e.g., Shapero v. Kentucky Bar Ass’n, — U.S. —, 108 S.Ct. 1916, 1923, 100 L.Ed.2d 475 (1988) (although total ban on direct mail solicitation is impermissible, state can regulate abuses and minimize mistakes through requirement that attorneys file proposed solicitation letters with state agency for case-by-case review); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 668, 105 S.Ct. 2265, 2290, 85 L.Ed.2d 652 (1985) (Brennan, J., concurring in part and dissenting in part) (a basic justification for allowing punishment for violations of imprecise commercial regulations is that business person can clarify meaning of arguably vague regulations by consulting with governmental administrators); Central Hudson, 447 U.S. at 571 n. 13, 100" }, { "docid": "16910041", "title": "", "text": "has nonetheless observed that there are “doctrinal uncertainties left in the wake of Supreme Court decisions from which the modern commercial speech doctrine has evolved. In particular, these decisions have created some uncertainty as to the degree of protection for commercial advertising that lacks precise informational content.” Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth., 134 F.3d 87, 94 (2d Cir.1998) In the end, we agree with the District Court that, with one exception discussed below, the content-based restrictions in the disputed provisions of § 1200.50(c) regulate commercial speech protected by the First Amendment. In almost every instance, descriptions of the first prong of the Central Hudson test are phrased in the negative, and the only categories that Central Hudson, and its sequellae, clearly excludes from protection are speech that is false, deceptive, or misleading, and speech that concerns unlawful activities. See, e.g., Florida Bar, 515 U.S. at 623-24, 115 S.Ct. 2371 (“[T]he government may freely regulate commercial speech that concerns unlawful activity or is misleading. Commercial speech that falls into neither of those categories ... may be regulated if the government satisfies [Central Hudson’s remaining three prongs].” (citation omitted)); Ibanez v. FI. Dep’t of Bus. & Prof'l Regulation, Bd. of Accountancy, 512 U.S. 136, 142, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994) (“[O]nly false, deceptive, or misleading commercial speech may be banned”). The Supreme Court has also emphasized that “States may not place an absolute prohibition on certain types of potentially misleading information ... if the information also may be presented in a way that is not deceptive.” In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982); see also, e.g., Peel v. Attorney Registration & Disciplinary Comm’n of Ill., 496 U.S. 91, 100-01, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990); Shapero v. Ky. Bar Ass’n, 486 U.S. 466, 479, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988); Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 644, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). We conclude from these precedents that the Central Hudson analysis applies to regulations of" }, { "docid": "22900499", "title": "", "text": "result, Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 590-91 (1st Cir.1980), we do not find that here. . In so arguing, Sullivan relied on Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), which held that commercial speech receives no constitutional protection. As noted, not until a decade after New York Times did the Court expressly extend First Amendment protection to commercial speech. See Virginia Pharmacy Bd., 425 U.S. at 755-70, 96 S.Ct. at 1822-30. . As we have noted, the Supreme Court cases on commercial speech all involve some form of government regulation of speech. See, e.g., Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986) (Puerto Rican statute prohibiting local casinos from advertising their gambling facilities to Puerto Rican residents); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985) (regulation of attorney advertisements by state bar association); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) (federal statute prohibiting mailing of unsolicited advertisements for contraceptives); In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982) (regulation of attorney advertisements by state supreme court); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (city ordinance prohibiting \"off-premise” advertising, unless permitted by one of twelve specified exceptions); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) (state statute prohibiting utility company advertisements promoting use of electricity); Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979) (state statute prohibiting the practice of optometry under a trade name); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) (state-authorized bar association regulation of in-person solicitation of clients by attorney); Bates v. State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (state supreme court rule prohibiting attorneys from advertising); Linmark Assocs., Inc. v. Township of Willingboro, 431" }, { "docid": "6097939", "title": "", "text": "n. 5, 100 S.Ct. 2343, 2349-50 & n. 5, 65 L.Ed.2d 341 (1980). See also Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 106 S.Ct. 2968, 2982, 92 L.Ed.2d 266 (1986). In this regard, we note that the Supreme Court has repeatedly suggested that in the area of commercial speech, prescreening or prepu-blication review of advertisements may be constitutionally sound. See, e.g., Shapero v. Kentucky Bar Ass’n, — U.S. —, 108 S.Ct. 1916, 1923, 100 L.Ed.2d 475 (1988) (although total ban on direct mail solicitation is impermissible, state can regulate abuses and minimize mistakes through requirement that attorneys file proposed solicitation letters with state agency for case-by-case review); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 668, 105 S.Ct. 2265, 2290, 85 L.Ed.2d 652 (1985) (Brennan, J., concurring in part and dissenting in part) (a basic justification for allowing punishment for violations of imprecise commercial regulations is that business person can clarify meaning of arguably vague regulations by consulting with governmental administrators); Central Hudson, 447 U.S. at 571 n. 13, 100 S.Ct. at 2354 n. 3 (commercial speech is such a sturdy brand of expression that traditional prior restraint doctrine may not apply, and system of previewing advertising campaigns may be acceptable given adequate procedural safeguards). Therefore, the fi nality requirement of the ripeness analysis applies in force to plaintiffs’ constitutional challenges to the attorney advertising rule. In sum, until it is shown that plaintiffs wish to engage in an activity that would be prohibited under the revised attorney advertising rule, their challenge lacks the level of factual specificity necessary to make the matter ripe for adjudication. It may be that plaintiffs’ proposed advertisements will meet with the Committee’s approval, and if that were the outcome of the agency action, there would indeed be no case or controversy to adjudicate because the concrete effects of the agency action would be favorable to plaintiffs. See Abbott Laboratories, 387 U.S. at 148-49, 87 S.Ct. at 1515-16. Turning to the second and third factors in determining whether the case is fit for judicial review, see swpra pages 536-37, we" }, { "docid": "2380541", "title": "", "text": "Mason further argues that even if the state does have a substantial interest, the Bar failed to produce sufficient evidence to justify its restrictions on his speech. Commercial speech, expression inextricably related to the economic interests of the speaker and audience, is undeniably entitled to substantial protection under the First and Fourteenth Amendments of the United States Constitution. See Ibanez v. Florida Dep’t of Bus. & Prof'l Regulation, 512 U.S. 136, 114 S.Ct. 2084, 129 L.Ed.2d 118 (1994); Edenfield v. Fane, 507 U.S. 761, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993); Peel v. Attorney Registration & Disciplinary Comm’n, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990); Board of Trustees v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989); Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Because of the value inherent in truthful, relevant information, a state may ban only false, deceptive, or misleading commercial speech. See Ibanez, 512 U.S. at 142, 114 S.Ct. at 2088. However, a state may restrict commercial speech that is not false, deceptive, or misleading upon a showing that the restriction “directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest.” Id. at 142-43, 114 S.Ct. at 2088-89. Lawyer advertising is a constitutionally protected form of commercial speech, but like any other form of commercial speech, a state may regulate it to protect the public. See Bates v. State Bar of Arizona, 433 U.S. 350, 383-84, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). This court reviews the constitutionality of a state’s restrictions on lawyer advertising pursuant to the four-part test originally set forth by the Supreme Court in Central Hudson. See 447 U.S. at 563-66, 100" }, { "docid": "3846608", "title": "", "text": "amendment. “Commercial speech” is speech whose purpose is to “propose a commercial transaction.” Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 3031, 106 L.Ed.2d 388 (1989). Classification of the speech as commercial does not become inappropriate merely because the speech is mixed with pure speech or touches on matters of public concern. Id. The Love Field amendment states that airlines may not offer service from Love Field to points outside the Love Field service area. DOT’s interpretation of that provision allows carriers to provide information and sell transportation to points outside the Love Field service area on request from a traveler, but forbids airlines (and travel agents) from advertising or offering to sell such transportation to travelers who do not request it. DOT Order 85-12-81. The purpose of offering or advertising service to points outside the Love Field service area is to propose a commercial transaction. The speech at issue, therefore, meets the Supreme Court’s definition of “commercial speech.” Commercial speech receives the protection of the first amendment when it “concern[s] lawful activity and [is] not ... misleading.” Id., 109 S.Ct. at 3032 (quoting Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980)). The sale of airline tickets is lawful, and the Love Field amendment restricts airlines and travel agents from offering truthful information concerning connecting flights to areas outside the Love Field service area. The speech at issue in this case, we conclude, is truthful and concerns a lawful activity and therefore receives first amendment protection. The Supreme Court articulated the test for determining whether restrictions on commercial speech violate the first amendment in Central Hudson. Id. at 566, 100 S.Ct. at 2351; see also Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 340, 106 S.Ct. 2968, 2976, 92 L.Ed.2d 266 (1986). Commercial speech may be “restricted only if the government’s interest in doing so is substantial, the restrictions directly advance the government’s asserted interest, and the restrictions are no" }, { "docid": "3969519", "title": "", "text": "States Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 471, 98 S.Ct. 799, 812, 54 L.Ed.2d 682 (1978) (quoting New Hampshire v. Maine, 426 U.S. 363, 96 S.Ct. 2113, 48 L.Ed.2d 701 (1976)). The Supreme Court has articulated the test for applying the Compact Clause as “whether the Compact enhances state power quoad the National Government.” Id. at 473, 98 S.Ct. at 813. Accordingly, the Compact Clause applies only where the challenged interstate agreement embraces actions a state could not take acting alone. See id. at 464, 473-75, 98 S.Ct. at 808, 812-14. Pan Am’s claim under the Compact Clause turns upon its contention that “the regulation of airline advertising is a power within the exclusive domain of the federal government.” Pan Am Mem. in Opp. to Motion to Dismiss at 42 (emphasis in original). However, as discussed above, the states enjoy concurrent jurisdiction with Congress to regulate airline advertising. Congress remains free to preempt state laws in this field, but to date it has declined to do so. The Guidelines may prove a more effective means than individual state action for regulating airline advertising, but that does not render them invalid. See id. at 476, 98 S.Ct. at 814. Because each state acting alone has the power to regulate in this field, coordinated state action poses no threat to federal supremacy and therefore does not violate the Compact Clause. For these reasons, Pan Am’s cause of action under the Interstate Compact clause is dismissed. 7. The First Amendment In its fourth cause of action, Pan Am claims that New York’s regulation of airline advertising violates its First Amendment right to free speech. Pan Am’s advertising constitutes commercial speech. The First Amendment protects commercial speech, provided the speech concerns a lawful activity and is not false or misleading. See Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 340, 106 S.Ct. 2968, 2976, 92 L.Ed.2d 266 (1986); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 564-66, 100 S.Ct. 2343, 2350-51, 65 L.Ed.2d 341 (1980); Virginia State Bd. of Pharmacy v. Virginia Citizens" }, { "docid": "5183791", "title": "", "text": "52, 54, 62 S.Ct. 920, 86 L.Ed. 1262 (1942) (observing that “the Constitution imposes no ... restraint on government as respects purely commercial advertising”). However, a quarter of a century later, the Court decided that commercial speech was not outside the realm of constitutional protection, observing that “speech does not lose its First Amendment protection because money is spent to project it.” Virginia Bd. of Pharm. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). While the Court did not specify what level of protection commercial speech was entitled to, it did conclude that “whatever may be the proper bounds” of permissible government restrictions, they were “plainly exceeded” in that case. Id. at 771, 96 S.Ct. 1817. A few years later, the Court set forth a general framework for evaluating whether a particular government restriction on commercial speech was constitutional. See Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343. The Court established a four-step test: For commercial speech to come [under the First Amendment], it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Id. at 566, 100 S.Ct. 2343. This standard, which is often referred to as an “intermediate” level of scrutiny, is less demanding than the strict scrutiny standard applied to traditionally protected speech. See Brown, 131 S.Ct. at 2733 (defining strict scrutiny); see also Reynolds, 696 F.3d at 1212 (describing Central Hudson test as “not quite as demanding” as strict scrutiny). In 1985, the Supreme Court then established an even lower level of scrutiny for government restrictions aimed at commercial speech that is false or misleading. In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), the Court analyzed the constitutionality of various Ohio state disciplinary rules, including a rule requiring an attorney to affirmatively disclose that clients" }, { "docid": "5183792", "title": "", "text": "least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Id. at 566, 100 S.Ct. 2343. This standard, which is often referred to as an “intermediate” level of scrutiny, is less demanding than the strict scrutiny standard applied to traditionally protected speech. See Brown, 131 S.Ct. at 2733 (defining strict scrutiny); see also Reynolds, 696 F.3d at 1212 (describing Central Hudson test as “not quite as demanding” as strict scrutiny). In 1985, the Supreme Court then established an even lower level of scrutiny for government restrictions aimed at commercial speech that is false or misleading. In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), the Court analyzed the constitutionality of various Ohio state disciplinary rules, including a rule requiring an attorney to affirmatively disclose that clients may be responsible for legal costs regardless of the outcome of their case. Id. at 629-30, 105 S.Ct. 2265. The Court began by observing that an advertiser has only a “minimal” constitutional interest in not providing any particular “purely factual and uncontroversial” information. Id. at 651, 105 S.Ct. 2265. Thus, given that the interests of the advertiser are less pressing, warnings or disclaimers “might be appropriately required” to avoid “consumer confusion or deception.” Id. (citing In re R.M.J., 455 U.S. 191, 201, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982)). The Court then concluded that “an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.” 471 U.S. at 651, 105 S.Ct. 2265. It specified in a footnote that such disclosure requirements were not subject to a “least restrictive means” analysis. Id. at 651 n. 14, 105 S.Ct. 2265. However, the Court also noted that “unjustified or unduly burdensome” disclosure requirements might offend the First Amendment if they “ehill[ed] protected commercial speech.” Id. at" }, { "docid": "3887252", "title": "", "text": "the first paragraph of the injunctive order restrains only speech that is unprotected by the Constitution. B. The second paragraph of the injunctive order against Kaun prohibits him from “advertising, marketing, or selling any documents or other information advising taxpayers that wages, salaries, or other income not specifically excluded from taxation under Title 26 of the United States Code are not taxable income.” As we read the order, the restrictions in this paragraph are clearly acceptable restrictions on false commercial speech. The Supreme Court has defined commercial speech as “expression related solely to the economic interest of the speaker and its evidence,” Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 561, 100 S.Ct. 2343, 2349, 65 L.Ed.2d 341 (1980); see also Pacific Gas & Elec. Co. v. P.U.C. of California, 475 U.S. 1, 106 S.Ct. 903, 908, 89 L.Ed.2d 1 (19 86) (Commercial speech is “speech that proposes a business transaction.”). Insofar as Kaun holds himself out as a tax adviser, his advertising and marketing activities in that regard are commercial speech. “The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading.” Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652 (1985); see also Central Hudson, 447 U.S. at 563-64, 100 S.Ct. at 2350 (“The government may ban forms of communication more likely to deceive the public than to inform it, ... or commercial speech related to illegal activity— ” (citations omitted)); In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64 (1982) (“Misleading advertising may be prohibited entirely.”). Because the injunction at issue merely restrains Kaun from advertising, marketing, and selling materials that are based on false and misleading theories under the guise of tax advice, Kaun’s First Amendment claim fails. Similarly, the third paragraph of the injunction, to the extent that it restricts speech at all, restricts only speech used to further an illegal activity — namely, the preparation of a false income tax return. This type" }, { "docid": "6293063", "title": "", "text": "the following reasons, I conclude that there is no overlap. The Supreme Court has recognized that the extent of First Amendment protection afforded to speech varies with the type of speech in question. For example: pure commercial speech which does “no more than propose a commercial transaction” .... receives a limited form of First Amendment protection so long as it concerns a lawful activity and is not misleading or fraudulent. Once it is determined that the First Amendment applies to the peculiar kind of commercial speech at issue, then the speech may be restricted only if the government’s interest in doing so is substantial, the restrictions directly advance the government’s asserted interests, and the restrictions are no more extensive than necessary to serve the interest. Posadas De Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328, 106 S.Ct. 2968, 2976, 92 L.Ed.2d 266 (1986). Accord, e.g., Skapero v. Kentucky Bar Assoc., — U.S. —, 108 S.Ct. 1916, 1927, 100 L.Ed.2d 475 (1988) (O’Connor, J. dissenting); Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980). In Matter of National Service Corp., 742 F.2d 859, 862 (5th Cir.1984), the Fifth Circuit concluded that the public advertising of the fact that a company was in bankruptcy and not paying its bills did not constitute commercial speech but rather was speech entitled to greater constitutional protection. In this instance, I need not decide whether the posting of the instant signs should be classified as commercial speech or more protected speech. Regardless of whether defendants’ speech was purely commercial, it certainly falls within the range of speech less stringently protected by the First Amendment than other types: We have long recognized that not all speech is of equal First Amendment importance. It is speech on “ 'matters of public concern’ ” that is “at the heart of the First Amendment’s protection.” In contrast, speech on matters of purely private concern is of less First Amendment concern.... While such speech is not totally unprotected by the First Amendment ... its" }, { "docid": "8501864", "title": "", "text": "apply to compelled commercial speech. But it does not appear that McBride is correct that he is required to give an untrue statement or not advertise his services regarding advising clients in areas of bankruptcy. The challenged required statement is ‘We help people file for bankruptcy relief under the Bankruptcy Code.” But section 528 also permit a substantially similar statement which the court can interpret to mean “we advise people about filing for bankruptcy assistance under the code.” Moreover, McBride could add details to his advertisements such as he does not actually file petitions. Moreover, section 528 does not appear to violate the constitution in a facial challenge. In In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982), the Court announced that the Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) four-prong intermediate scrutiny commercial speech test would apply to professional service advertising cases. The first prong requires the court to determine whether the expression is protected by the First Amendment right to commercial speech. This requires the expression at issue to propose a commercial transaction that is not unlawful or misleading. Central Hudson at 566, 100 S.Ct. 2343. The second prong requires a court to ask whether the government has a substantial interest. Id. If both inquiries are positive, then the third and fourth prongs look to whether the regulation directly advances the governmental interest asserted and whether the regulation is narrowly drawn. Id. In Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 477, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989), the Court noted that a narrowly drawn regulation does not have to be the least restrictive means, but rather be “something short of a least-restrictive-means standard.” However, In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985) the Court addressed the validity of a state statute that compelled the disclosure of possible litigation costs in attorney advertisements. The Court recognized that disclosure requirements implicated the attorney’s" }, { "docid": "16226761", "title": "", "text": "to First Amendment protection. Central Hudson Gas & Elec. v. Public Service Comm’n of New York, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980). For commercial speech to receive first amendment protection, it must concern lawful activity and must not be misleading. Id.; see also Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979); Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973). Here, as appellee concedes, the speech contained in The Shopper meets this part of the test and thus merits the constitutional protection afforded commercial speech. The dispute on appeal centers on the second part of the test which requires the Court to determine whether the governmental regulation of speech was justified. Bd. of Trustees of State Univ. of New York v. Fox, — U.S. -, 109 S.Ct. 3028, 3032, 106 L.Ed.2d 388 (1989); Posadas de Puerto Rico Ass’n v. Tourism Co. of Puerto Rico, 478 U.S. 328, 340, 106 S.Ct. 2968, 2976, 92 L.Ed.2d 266 (1986); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652 (1985). Analysis of this question requires weighing two factors: (1) the type of forum where the speech takes place and (2) the nature of the governmental restriction. See Nat’l Socialist White People’s Party v. Ringers, 473 F.2d 1010, 1014 (4th Cir.1973) (en banc); Henrico Prof. Firefighters Ass’n, Local 1568 v. Bd. of Supervisors of Henrico County, 649 F.2d 237, 245-46 & n. 13 (4th Cir.1981); M.N.C. of Hinesville v. U.S. Dept. of Defense, 791 F.2d 1466 (11th Cir.1986). Perry Educ. Ass’n v. Perry Local Educators’Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), establishes the framework for reviewing the reasonableness of speech regulation on government property. Under Perry, government property falls into three categories: (i) traditional public forums, (ii) created public forums, and (iii) non-public forums. Id. at 45-46, 103 S.Ct. at 954-955. Traditional public forums, such as public parks and streets, are subject to sweeping constitutional protections. In these fora, governmental restrictions of speech based" } ]

[ { "docid": "16938972", "title": "", "text": "a labor dispute grew an economic strike. The strike was not caused by any unfair labor practice of the Company. Since the strike grew out of a labor dispute, the employees maintained their status as employees of the Company. 29 U.S.C.A. § 152(3); National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U. S. 333, 344, 347, 58 S.Ct. 904, 82 L.Ed. 1381; Wilson & Co. v. National Labor Relations Board, 7 Cir., 124 F.2d 845, 847, 848; Firth Carpet Co. v. National Labor Relations Board, 2 Cir., 129 F.2d 633, 635, 636. Without violating Sec. 8(3) of the Act, the Company had a right to discharge these employees or to refuse to take them back into its employ, as long as it did not discriminate against them in such a manner as to encourage or discourage membership in any labor organization. Failure to reemploy striking employees because they engaged in a strike may be an interference with their right to engage in “concerted activities” as provided in Section 7 of the Act and would therefore constitute an unfair labor practice under Section 8(1) of the Act. Does such a violation of Section 8(1) in and of itself warrant a finding of a violation of Section 8(3) ? We think not. Employees may under Section 7 of the Act “have the right * * * to engage in concerted activities” irrespective of any labor organization, and interference with such “concerted activities” would be an unfair labor practice within the meaning of Section 8(1) of the Act. It does not follow that a finding of interference with “concerted activities” or discrimination because of “concerted activities” is a violation of Section 8(3) of the Act. Under this Section of the Act to constitute the unfair labor practice of discrimination, the discrimination in regard to hire and tenure ■ must have the purpose “to encourage or discourage membership in any labor organization.” The Board has found discrimination because of concerted activities. We think there is evidence to support such findings. We must go one step further. Was that discrimination to encourage" } ]

[ { "docid": "23576226", "title": "", "text": "employees were not allowed to'work, they did not return thereafter until all were taken back. In refusing to allow the discharged employees to return to work, the company did not refuse to allow others who had joined in the strike to return, and would have permitted them to work if they had presented themselves. With respect to the circulation of the petitions, it appears that officers of the union complained, about two weeks in advance of the meeting of August 13th, that anti-union petitions were being circulated, whereupon the superintendent promised that this would not be allowed. On August 12th, however, it appears that an employee was engaged in circulating such a petition in the presence of one of the foremen, but it does not appear that the company had anything to do with its circulation or that it was called to 'the attention of the superintendent. A petition was circulated also on the 13th, but when complaint thereof was made to the superintendent, he reprimanded the employee for circulating it. In the conference on the 13th, the petitions were referred to by the' secretary of the company as casting doubt on the right of the union to represent the employees, but the company subsequently recognized the union as the bargaining representative of the employees and efforts to negotiate a contract were resumed. The principal question in the case is whether the discharge of the forty-one employees on October 15th and the subsequent refusal to reemploy them were unfair labor practices within the meaning of the National Labor Relations Act. On behalf of the 'Board, it is argued that the employees who went on the “wild cat” strike were engaged in “concerted activities, for 'the purpose of collective bargaining or other mutual aid or protection”, within the meaning of section 7 of the act, 29 U.S.C.A. § 157, and that the dis- , charge and refusal to reemplov .on this account was interference, restraint or coercion with respect to.the right to engage in such concerted activities, denounced as an unfair labor practice by section 8(1) of the act, 29 U.S.C.A." }, { "docid": "23576228", "title": "", "text": "§ 158(1). It is argued also that the discharge and refusal to reemploy constituted “discrimination in regard to hire or tenure of employment * * * .to encourage or discourage membership in any labor organization”, condemned as an unfair labor practice by section 8(3) of the Act, 29 U.S.C.A. § 158(3). It is perfectly clear that, in the discharge and refusal to reemploy, there was no intent to discourage membership in any labor organization, within the meaning of section 8(3) of the act. The great majority of the employees, wtio were members of the union, continued to work; the company continued to recognize the union as the bargaining representative of its employees; the discharge and refusal to employ did not affect and could not have -affected the status of the union as bárgaining representative; and there is not a scintilla of evidence to support the conclusion that the discharge of the “wild cat” strikers or the refusal to reemploy them encouraged or discouraged membership in any labor organization or was intended to have any such effect. Western Cartridge Co. v. N. L. R. B., 7 Cir., 139 F.2d 855. The question is narrowed, then, to whether what was done amounts to an unfair labor practice within section 8(1) of' the act. This depends on whether or not the “wild cat” strike, in which the discharged employees were engaged, falls within the protection of section 7 of the act. If it does, a discharge on account thereof would clearly be interference and coercion with respect thereto within the meaning of section 8(1). Cf. Western Cartridge Co. v. N. L. R. B., supra. If it does not, the discharge and failure to reemploy would be justified and would furnish no basis for a finding of unfair labor practice. We pass the question as to whether the discharge of the employees was justified by the insubordinate conduct of standing around the plant and refusing to go to work when ordered (Cf. N. L. R. B. v. American Mfg. Co., 2 Cir., 106 F.2d 61, 68; N. L. R. B. v. Condenser Corp. of" }, { "docid": "5385104", "title": "", "text": "vital question presented is: Was the work stoppage and walk out on September 13, under the facts and circumstances disclosed by this record, such a concerted activity for mutual aid and protection by employees so as to be within the protection of section 7 of the Labor Management Relations Act? The petitioning Company claims that it was not. Section 9 of the National Labor Relations Act, 49 Stat. 453, as amended by the Labor Management Relations Act, 61 Stat. 136, provides as follows: “(a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer.” 29 U.S.C.A. § 159. In the case at bar a comparatively small number of discontented employees undertook by a work stoppage or strike movement to take charge of and direct the actions of their chosen bargaining representative in negotiation with their employer as to the terms of employment. We agree with what was said by the Court of Appeals for the Fourth Circuit in N.L.R.B. v. Draper Corporation, 145 F.2d 199-203, 156 A.L.R. 989: “* * * Minority groups must acquiesce in the action of the majority and the bargaining agent they have chosen; and, just as a minority has no right to enter into separate bargaining arrangements with the employer, so it has no right to take independent action to interfere with the course of bargaining which is being carried on by the duly authorized bargaining agent chosen by the majority.” In the Draper case the corporation and the Union there involved were engaged in negotiations over a new collective bargaining agreement. A group of employees stopped work over what they called the “corporation’s stalling,” they notified the superintendent of what they intended to do and" }, { "docid": "5385109", "title": "", "text": "portion of an order of the National Labor Relations Board, which proceeded upon the theory that the discharge of a participant in a “wild cat” strike was an unfair labor practice. In other words, we reached the same conclusion that was arrived at in the Draper case. Cf. Annotation 156 A.L.R. 998. In a more recent case, N.L.R.B. v. Illinois Bell Telephone Co., 7 Cir., 189 F.2d 124, certiorari denied, 342 U.S. 885, 72 S.Ct. 173, 96 L.Ed. 663, this Court relied upon the decision in the Draper case. It there appeared that several telephone operators were subjected to discipline because they refused to cross a picket line set up across their approach to the plant by a union other than that to which they belonged. The Union to which the operators belonged was at the time engaged as their bargaining agent in collective bargaining with the telephone company. It was there held that the operators’ activities did not constitute concerted activity within the protection of section 7 of the Act. The record in the instant case is destitute of any evidence that the Company discouraged membership in the Union in any way, or that it has interfered with the right of the employees to organize or to join the C.I.O. Workers Union. In our opinion the work stoppage of September 13, 1951, was not, under the facts and circumstances shown, a concerted activity for mutual aid within the protection of section 7 of the Act. The order of the Board is set aside, and the Board’s request for enforcement is denied." }, { "docid": "5385108", "title": "", "text": "in action taken by the union and that they would not undertake independent action with respect to the matters they had committed to it as their authorized agency. Not only did the company agree to bargain only with the union, but the employees agreed to bargain only through the union. Those who engaged in the ‘wild cat’ strike violated this agreement. * * * “No surer way could be found to bring collective bargaining into general disrepute than to hold that ‘wild cat’ strikes are protected by the collective bargaining statute.” The Court of Appeals for the Fourth Circuit in the Draper opinion cites Western Cartridge Co. v. N.L.R.B., 139 F.2d 855. In that case, this Court while recognizing the exclusive right of the National Labor Relations Board to draw inferences from the evidence, did not think that the evidence supported an inference that the employer’s discharge of an employee who had participated in a “wild cat” strike was for the purpose of discouraging membership in a labor union. We there denied enforcement of a portion of an order of the National Labor Relations Board, which proceeded upon the theory that the discharge of a participant in a “wild cat” strike was an unfair labor practice. In other words, we reached the same conclusion that was arrived at in the Draper case. Cf. Annotation 156 A.L.R. 998. In a more recent case, N.L.R.B. v. Illinois Bell Telephone Co., 7 Cir., 189 F.2d 124, certiorari denied, 342 U.S. 885, 72 S.Ct. 173, 96 L.Ed. 663, this Court relied upon the decision in the Draper case. It there appeared that several telephone operators were subjected to discipline because they refused to cross a picket line set up across their approach to the plant by a union other than that to which they belonged. The Union to which the operators belonged was at the time engaged as their bargaining agent in collective bargaining with the telephone company. It was there held that the operators’ activities did not constitute concerted activity within the protection of section 7 of the Act. The record in the" }, { "docid": "5385106", "title": "", "text": "walked off the job. They were discharged. The National Labor Relations Board found the corporation guilty of unfair labor practices and ordered the reinstatement and reimbursement of the employees. Its petition for the enforcement of its order was denied. In the Draper case the Court of Appeals for the Fourth Circuit stated the question was narrowed down as to whether what was done by the Corporation amounted to an unfair labor practice. In answering, it said, 145 F.2d on page 202: “This depends on whether or not the ‘wild cat’ strike, in which the discharged employees were engaged, falls within the protection of section 7 of the act. If it does, a discharge on account thereof would clearly be interference and coercion with respect thereto within the meaning of section 8(1). Cf. Western Cartridge Co. v. N.L.R.B., [7 Cir., 139 F.2d 855] supra. If it does not, the discharge and failure to reemploy would be justified and would furnish no basis for a finding of unfair labor practice. * * we are of opinion that the ‘wild cat’ strike in which the employees were engaged and for which they were discharged was not such a concerted activity as falls within the protection of section 7 of the National Labor Relations Act, but a strike in violation of the purposes of the act by a minority group of employees in an effort to interfere with the collective bargaining by the duly authorized bargaining agent selected by all the employees. The purpose of the act was not to guarantee to employees the right to do as they please but to guarantee to them the right of collective bargaining for the purpose of preserving industrial peace.” Further, on pages 204-205, 145 F.2d, the court said: “When the union was selected by the employees and recognized by the company as bargaining agent, it was understood and agreed on all sides that bargaining with respect to wages, hours and conditions of work would be carried on between the union and the company in accordance with the above quoted statutory provision, that the employees would acquiesce" }, { "docid": "23576227", "title": "", "text": "the 13th, the petitions were referred to by the' secretary of the company as casting doubt on the right of the union to represent the employees, but the company subsequently recognized the union as the bargaining representative of the employees and efforts to negotiate a contract were resumed. The principal question in the case is whether the discharge of the forty-one employees on October 15th and the subsequent refusal to reemploy them were unfair labor practices within the meaning of the National Labor Relations Act. On behalf of the 'Board, it is argued that the employees who went on the “wild cat” strike were engaged in “concerted activities, for 'the purpose of collective bargaining or other mutual aid or protection”, within the meaning of section 7 of the act, 29 U.S.C.A. § 157, and that the dis- , charge and refusal to reemplov .on this account was interference, restraint or coercion with respect to.the right to engage in such concerted activities, denounced as an unfair labor practice by section 8(1) of the act, 29 U.S.C.A. § 158(1). It is argued also that the discharge and refusal to reemploy constituted “discrimination in regard to hire or tenure of employment * * * .to encourage or discourage membership in any labor organization”, condemned as an unfair labor practice by section 8(3) of the Act, 29 U.S.C.A. § 158(3). It is perfectly clear that, in the discharge and refusal to reemploy, there was no intent to discourage membership in any labor organization, within the meaning of section 8(3) of the act. The great majority of the employees, wtio were members of the union, continued to work; the company continued to recognize the union as the bargaining representative of its employees; the discharge and refusal to employ did not affect and could not have -affected the status of the union as bárgaining representative; and there is not a scintilla of evidence to support the conclusion that the discharge of the “wild cat” strikers or the refusal to reemploy them encouraged or discouraged membership in any labor organization or was intended to have any such" }, { "docid": "627139", "title": "", "text": "conduct of the employer calculated to have the effect of discouraging union membership. So far as the record shows, all of the non-strikers were members of the same union, yet none of them was discharged. All of the strikers were put back to work as soon as production requirements would permit without the imposition of any conditions relative to union membership. The company had met and negotiated with the Union regularly for some months prior to the strike —the last meeting being only 21 days before the strike. Even if the employer’s action could be justifiably construed to be retribution for or interference with the activity of the minority group of strikers, there has been no showing whatever that such conduct was for the purpose of, or had the effect of discouraging union membership. Perhaps the error of the Board is demonstrated by its finding: “By discriminating in regard to the tenure of employment of * * * thereby discouraging memberships in and activities on behalf of a labor organization * * * ” (emphasis added) Such an extension of § 8(a) (3) must be made by the Congress, not the Board. Judicial approval of such an extension does not justify or strengthen it. In Draper, supra, the 4th Circuit stated: “It is perfectly clear that, in the discharge and refusal to reemploy, there was no intent to discourage membership in any labor organiza tion, within the meaning of section •8(3) of the act. The great majority •of the employees, who were members of the union, continued to work; the ■company continued to recognize the union as the bargaining representative of its employees; the discharge and refusal to employ did not affect and could not have affected the status of the union as bargaining representative; and there is not a scintilla of evidence to support the conclusion that the discharge of the ‘wild cat strikers or the refusal to reemploy them encouraged or discouraged membership in any labor organization or was intended to have any such effect. Western Cartridge Co. v. N.L.R.B., 7 Cir., 139 F.2d 855.” In Plasti-Line, Inc." }, { "docid": "5385107", "title": "", "text": "the ‘wild cat’ strike in which the employees were engaged and for which they were discharged was not such a concerted activity as falls within the protection of section 7 of the National Labor Relations Act, but a strike in violation of the purposes of the act by a minority group of employees in an effort to interfere with the collective bargaining by the duly authorized bargaining agent selected by all the employees. The purpose of the act was not to guarantee to employees the right to do as they please but to guarantee to them the right of collective bargaining for the purpose of preserving industrial peace.” Further, on pages 204-205, 145 F.2d, the court said: “When the union was selected by the employees and recognized by the company as bargaining agent, it was understood and agreed on all sides that bargaining with respect to wages, hours and conditions of work would be carried on between the union and the company in accordance with the above quoted statutory provision, that the employees would acquiesce in action taken by the union and that they would not undertake independent action with respect to the matters they had committed to it as their authorized agency. Not only did the company agree to bargain only with the union, but the employees agreed to bargain only through the union. Those who engaged in the ‘wild cat’ strike violated this agreement. * * * “No surer way could be found to bring collective bargaining into general disrepute than to hold that ‘wild cat’ strikes are protected by the collective bargaining statute.” The Court of Appeals for the Fourth Circuit in the Draper opinion cites Western Cartridge Co. v. N.L.R.B., 139 F.2d 855. In that case, this Court while recognizing the exclusive right of the National Labor Relations Board to draw inferences from the evidence, did not think that the evidence supported an inference that the employer’s discharge of an employee who had participated in a “wild cat” strike was for the purpose of discouraging membership in a labor union. We there denied enforcement of a" }, { "docid": "627143", "title": "", "text": "construction of the Act will surely result in unauthorized action by dissident individuals or groups when, in their opinion, the union is moving too slow. In our view, the Congress did not intend to approve such conduct, but sought to condemn such a course of action in the hope of promoting “industrial peace.” I must, therefore, dissent. Rehearing denied; GEWIN, Circuit Judge, dissenting. . In N. L. R. B. v. Draper Corp., supra, the court said: “ * * * We do not mean to say, of course, that a strike can be called only by a bargaining union, or that less than a majority of employees will not be protected when they go on strike in protection of their rights. See Firth Carpet Co. v. N. L. R. B., 2 Cir., 129 F.2d 633. What we do mean to say is that minorities who engage in ‘wild cat’ strikes, in violation of rights established by the collective bargaining statute, can find nothing in that statute which protects them from discharge. In the absence of the statute, there was nothing in the law which forbade the discharge of strikers. There is nothing in the statute, properly construed, which protects from discharge those who strike in defiance of its provisions. No surer way could be found to bring collective bargaining into general disrepute than to hold that ‘wild cat’ strikes are protected by the collective bargaining statute.” . The pertinent portion of the Section is as follows: “It shall be an unfair labor practice for an employer — * * * by discrimination * * * to encourage or discourage membership in any labor organization.” . As was said in Sunbeam supra : “ * * * The Board’s findings are entitled to respect but they are to be measured by whether or not they are supported by substantial evidence on the record considered as a whole. Universal Camera Corporation v. N. L. R. B., 340 U. S. 474, 71 S.Ct. 456, 95 L.Ed. 456.” . See Footnote 2, Medo Photo Supply Corp., supra: “That the Act ‘carries the clear implication" }, { "docid": "23576230", "title": "", "text": "America, 3 Cir., 128 F.2d 67, 77), because we are of opinion that the “wild cat” strike in which the employees were engaged and for which they were discharged was not such a concerted activity as falls within the protection of section 7 of the National Labor Relations Act, but a strike in violation of the purposes of the act by a minority group of employees in an effort to interfere with the collective bargaining by the duly authorized bargaining agent selected by all the employees. The purpose of the act was not to guarantee to employees the right to do as they please but to guarantee to them the right of collective bargaining for the purpose of preserving industrial peace. The policy of the act is thus set forth, 29 U.S.C.A. § 151: “The denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce. * * * It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” It is perfectly clear not only that the “wild cat” strike is a particularly harmful and demoralizing form of industrial strife and unrest, the necessary effect of which is to burden and obstruct commerce, but also that it is necessarily destructive of that collective bargaining which it is the purpose of the act to promote. Even though the majority of the employees in an industry may have selected their bargaining agent and the agent may have been recognized by the employer," }, { "docid": "23576241", "title": "", "text": "minorities who engage in “wild cat” strikes, in violation of rights established by the collective bargaining statute, can find nothing in that statute which protects them from discharge. In the absence of the statute, there was nothing in the law which forbade the discharge of strikers. There is nothing in the statute, properly construed, which protects from discharge those who strike in defiance of its provisions. No surer way could be found to bring collective bargaining into general disrepute than to hold that “wild cat” strikes are protected by the collective bargaining statute. It is true, of course, that the National Labor Relations Act is not to be construed to interfere in any way with the right to strike. Section 13 of the act, 29 U.S.C.A. § 163, expressly so provides. What is involved here, however, is, not the right to strike, but the right of the employer to discharge employees who have engaged in insubordinate conduct violative of the statutory provisions for collective bargaining. Since those engaged in the “wild cat” strike were not protected from discharge and their reinstatement was not required, there was no basis for the finding of an unfair labor practice on the part of the company with respect to the,discharge and refusal to reemploy, or for the order awarding reimbursement of pay for time lost in the strike. This is true, of course, not only as to the men who were discharged, but also as to those who joined their strike and made common cause with them. As to the latter, the evidence shows without contradiction that except as to the one discharged by mistake, the company at no time discharged them or refused to allow them to work. There is no basis for a finding of any unfair labor practice as to any of them. And there is no substantial evidence of any sort with respect to an unfair labor practice in the circulation of the anti-union petitions. There is not a scintilla of evidence that the company had anything to do with their circulation, and when the attention of the superintendent was" }, { "docid": "22731183", "title": "", "text": "under § 10 to order the employer to cease and desist from so doing and to take action undoing his violation, including the reinstatement of discharged employees, if such reinstatement would effectuate the policies of the Act. While the employer had numerous obligations to his employees and their bargaining representative, the union and the employees were under no statutory duty to the employer. For example, the union was not required to bargain in good faith, and it was not forbidden to strike in order to achieve its demands during a period of contract renegotiation. If this case had come up under the Wagner Act the results would be clear. The employers violated § 8 and thereby unleashed the strike. Such a strike would not have been in violation of any statutory duty because the union and the employees had no duties under the Wagner Act. Since the employers had committed an unfair labor practice, the Board had jurisdiction and could order the discharged strikers reinstated with back pay. Phelps Dodge Corp. v. Labor Board, 313 U. S. 177. Furthermore, the employers’ discharge of their employees because they engaged in a strike was itself an unfair labor practice under § 8 for it interfered with their § 7 right to engage in “concerted activities.” The Wagner Act did not define “concerted activities.” All collective action, however, was not concerted activity protected by § 7. We held in Labor Board v. Fansteel Metallurgical Corp., 306 U. S. 240, that a sit-down strike was not § 7 activity; and in Southern S. S. Co. v. Labor Board, 316 U. S. 31, we decided that a strike in violation of the laws against mutiny was not protected under § 7. If an employer interferes with collective employee action which is not sanctioned by § 7, he does not violate § 8, and in the absence of a violation of § 8 the Board cannot take action under § 10. Thus if an employer discharges workers because they engaged in a sit-down strike for higher wages, the Board cannot order him to reinstate the strikers." }, { "docid": "23576229", "title": "", "text": "effect. Western Cartridge Co. v. N. L. R. B., 7 Cir., 139 F.2d 855. The question is narrowed, then, to whether what was done amounts to an unfair labor practice within section 8(1) of' the act. This depends on whether or not the “wild cat” strike, in which the discharged employees were engaged, falls within the protection of section 7 of the act. If it does, a discharge on account thereof would clearly be interference and coercion with respect thereto within the meaning of section 8(1). Cf. Western Cartridge Co. v. N. L. R. B., supra. If it does not, the discharge and failure to reemploy would be justified and would furnish no basis for a finding of unfair labor practice. We pass the question as to whether the discharge of the employees was justified by the insubordinate conduct of standing around the plant and refusing to go to work when ordered (Cf. N. L. R. B. v. American Mfg. Co., 2 Cir., 106 F.2d 61, 68; N. L. R. B. v. Condenser Corp. of America, 3 Cir., 128 F.2d 67, 77), because we are of opinion that the “wild cat” strike in which the employees were engaged and for which they were discharged was not such a concerted activity as falls within the protection of section 7 of the National Labor Relations Act, but a strike in violation of the purposes of the act by a minority group of employees in an effort to interfere with the collective bargaining by the duly authorized bargaining agent selected by all the employees. The purpose of the act was not to guarantee to employees the right to do as they please but to guarantee to them the right of collective bargaining for the purpose of preserving industrial peace. The policy of the act is thus set forth, 29 U.S.C.A. § 151: “The denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary" }, { "docid": "1977407", "title": "", "text": "down the Nu-Art Department than to let the C.I.O. come in; by refusing to bargain collectively with T.W.O.C. when that organization represented a majority of the employees in an appropriate unit; by discharging sixteen employees because of their membership in and their activity on behalf of T.W.O.C.; by refusing to reinstate a number of employees who on June 29, 1937, had gone on strike because of the Company’s unfair labor practices, and by dominating and interfering with the formation and administration of Nu-Art and contributing support to it. Upon the basis of the foregoing findings of fact the Board determined (a) that the Company had engaged and was engaging in unfair labor practices within the meaning of Section 8 (1) in that it had interfered with, restrained or coerced its employees in their rights to self organization, to form or join labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; (b) that it engaged in unfair labor practices within the meaning of Section 8 (2) in that it dominated or interfered with the formation or administration of Nu-Art and contributed support to that organization; (c) that it engaged in unfair labor practices within the meaning of Section 8 (3) through discrimination in regard to hire or tenure of employment and other terms or conditions of employment; (d) that it engaged in unfair labor practices within the meaning of Section 8 (5) by refusing to bargain collectively with representatives selected by the majority of its employees. The.Board ordered the Company to take affirmative action in order to effectuate the policies of the Act (1) by offering reinstatement with back pay to the sixteen named employees who on June 29, 1937, were discharged; (2) by offering reinstatement to those striking employees who were refused reinstatement, together with back pay from the date of such refusal; (3) by withdrawing all recognition from Nu-Art as' representative of the employees for the purpose of collective bargaining; (4) by (upon request) bargaining collectively with T.W.O.C. as" }, { "docid": "23576240", "title": "", "text": "should he noted that a “wild cat” strike in violation of the purposes of, the act and of an agreement existing between the employer and employees for orderly collective bargaining is clearly distinguishable from a strike which, although not justified, nevertheless accords with the rights of the parties under the National Labor Relations Act. Such a strike was before the Court in N. L. R. B. v. Mackay Radio & Tel. Co., 304 U. S. 333, 344, 58 S.Ct. 904, 82 L.Ed. 1381. There, the strike was called by the union representing the employees; here the strike was called and carried on by an irresponsible minority in defiance of the bargaining union. We do not mean to say, of course, that a strike can be called only by a bargaining union, or that less than a majority of employees will not be protected when they go on strike in protection of their rights. See Firth Carpet Co. v. N. L. R. B., 2 Cir., 129 F.2d 633. What we do mean to say is that minorities who engage in “wild cat” strikes, in violation of rights established by the collective bargaining statute, can find nothing in that statute which protects them from discharge. In the absence of the statute, there was nothing in the law which forbade the discharge of strikers. There is nothing in the statute, properly construed, which protects from discharge those who strike in defiance of its provisions. No surer way could be found to bring collective bargaining into general disrepute than to hold that “wild cat” strikes are protected by the collective bargaining statute. It is true, of course, that the National Labor Relations Act is not to be construed to interfere in any way with the right to strike. Section 13 of the act, 29 U.S.C.A. § 163, expressly so provides. What is involved here, however, is, not the right to strike, but the right of the employer to discharge employees who have engaged in insubordinate conduct violative of the statutory provisions for collective bargaining. Since those engaged in the “wild cat” strike were not" }, { "docid": "5385105", "title": "", "text": "number of discontented employees undertook by a work stoppage or strike movement to take charge of and direct the actions of their chosen bargaining representative in negotiation with their employer as to the terms of employment. We agree with what was said by the Court of Appeals for the Fourth Circuit in N.L.R.B. v. Draper Corporation, 145 F.2d 199-203, 156 A.L.R. 989: “* * * Minority groups must acquiesce in the action of the majority and the bargaining agent they have chosen; and, just as a minority has no right to enter into separate bargaining arrangements with the employer, so it has no right to take independent action to interfere with the course of bargaining which is being carried on by the duly authorized bargaining agent chosen by the majority.” In the Draper case the corporation and the Union there involved were engaged in negotiations over a new collective bargaining agreement. A group of employees stopped work over what they called the “corporation’s stalling,” they notified the superintendent of what they intended to do and walked off the job. They were discharged. The National Labor Relations Board found the corporation guilty of unfair labor practices and ordered the reinstatement and reimbursement of the employees. Its petition for the enforcement of its order was denied. In the Draper case the Court of Appeals for the Fourth Circuit stated the question was narrowed down as to whether what was done by the Corporation amounted to an unfair labor practice. In answering, it said, 145 F.2d on page 202: “This depends on whether or not the ‘wild cat’ strike, in which the discharged employees were engaged, falls within the protection of section 7 of the act. If it does, a discharge on account thereof would clearly be interference and coercion with respect thereto within the meaning of section 8(1). Cf. Western Cartridge Co. v. N.L.R.B., [7 Cir., 139 F.2d 855] supra. If it does not, the discharge and failure to reemploy would be justified and would furnish no basis for a finding of unfair labor practice. * * we are of opinion that" }, { "docid": "627142", "title": "", "text": "and a contract which, at the time this controversy arose, was being recognized. No one of the group of strikers testified that his union membership had anything to do with his being discharged. The Court is unable, in the light of this record, to sustain the Board’s action on this phase of the case. Certainly, there is no evidence of any kind to support an inference of a Section 8(a) (3) violation. The petitioners’ discharge and refusal to reinstate the strikers, in the circumstances of this case, could not, under any stretch of the imagination, be considered an unfair labor practice under the latter section of the Act. N.L.R.B. v. Draper Corp., supra.” The record in this case firmly convinces me that the actions of this minority group of strikers, perhaps taken with the same ultimate motive that the Union had, was by no means consistent with the policies and methods of the Union. The majority apparently hold that so long as the ultimate objective is the same, any minority activity is protected. Such a construction of the Act will surely result in unauthorized action by dissident individuals or groups when, in their opinion, the union is moving too slow. In our view, the Congress did not intend to approve such conduct, but sought to condemn such a course of action in the hope of promoting “industrial peace.” I must, therefore, dissent. Rehearing denied; GEWIN, Circuit Judge, dissenting. . In N. L. R. B. v. Draper Corp., supra, the court said: “ * * * We do not mean to say, of course, that a strike can be called only by a bargaining union, or that less than a majority of employees will not be protected when they go on strike in protection of their rights. See Firth Carpet Co. v. N. L. R. B., 2 Cir., 129 F.2d 633. What we do mean to say is that minorities who engage in ‘wild cat’ strikes, in violation of rights established by the collective bargaining statute, can find nothing in that statute which protects them from discharge. In the absence of" }, { "docid": "23576239", "title": "", "text": "action taken by the union and that they would not undertake independent action with respect to the matters they had committed to it as their authorized agency. Not only did the company agree to bargain only with the union, but the employees agreed to bargain only through the union. Those who engaged in the “wild cat” strike violated this agreement. We have noted the expression in the opinion in Western Cartridge Co. v. N. L. R. B., supra, 7 Cir., 139 F.2d 855, to the effect that discharge for engaging in what was in effect a “wild cat” strike would constitute a violation of section 8(1) of the act. . The question in that case, however, was whether what was done amounted to a violation of section 8(3), and there was' no decision to the effect that it constituted á violation of section 8(1). What was said with respect to violation of section 8(1), therefore, was said by way of dictum and no consideration was given to the questions which we have discussed here. It should he noted that a “wild cat” strike in violation of the purposes of, the act and of an agreement existing between the employer and employees for orderly collective bargaining is clearly distinguishable from a strike which, although not justified, nevertheless accords with the rights of the parties under the National Labor Relations Act. Such a strike was before the Court in N. L. R. B. v. Mackay Radio & Tel. Co., 304 U. S. 333, 344, 58 S.Ct. 904, 82 L.Ed. 1381. There, the strike was called by the union representing the employees; here the strike was called and carried on by an irresponsible minority in defiance of the bargaining union. We do not mean to say, of course, that a strike can be called only by a bargaining union, or that less than a majority of employees will not be protected when they go on strike in protection of their rights. See Firth Carpet Co. v. N. L. R. B., 2 Cir., 129 F.2d 633. What we do mean to say is that" }, { "docid": "23576238", "title": "", "text": "reasons than such intimidation and coercion.’ ” In the Sands Mfg. Co. case, supra, the Supreme Court said [306 U.S. 332, 59 S.Ct. 514, 83 L.Ed. 682]: “The Act does not prohibit an effective discharge for repudiation by the employe of his agreement, any more than it prohibits such discharge for a tort committed against the employer.” While the striking employees here were not guilty of a breach of agreement not to strike, as in the Sands Mfg. Co. and Hazel-Atlas Glass Co., cases, supra, they were guilty of interfering with the collective bargaining, which was being carried on by their duly authorized agent, in violation of the collective bargaining agreement entered into with the company. When the union was selected by the. employees and recognized by the company as bargaining agent, it was understood 'and ágreed on all sides that bargaining with respect to wages, hours and conditions of work would be carried on between the union and the company in accordance with the above quoted statutory provision, that the employees would acquiesce in action taken by the union and that they would not undertake independent action with respect to the matters they had committed to it as their authorized agency. Not only did the company agree to bargain only with the union, but the employees agreed to bargain only through the union. Those who engaged in the “wild cat” strike violated this agreement. We have noted the expression in the opinion in Western Cartridge Co. v. N. L. R. B., supra, 7 Cir., 139 F.2d 855, to the effect that discharge for engaging in what was in effect a “wild cat” strike would constitute a violation of section 8(1) of the act. . The question in that case, however, was whether what was done amounted to a violation of section 8(3), and there was' no decision to the effect that it constituted á violation of section 8(1). What was said with respect to violation of section 8(1), therefore, was said by way of dictum and no consideration was given to the questions which we have discussed here. It" } ]

[ { "docid": "15685543", "title": "", "text": "ADAMS, District Judge. The bill charges that the complainant is the owner of several letters patent of the United States, numbered, respectively, 373,639 (dated November 22, 1887), 418,438 (dated December 31, 1889), 425,653 (dated April 15, 1890), 428,068 (dated May 20, 1890), and 430,418 (dated June 17, 1890),—all for certain new and useful improvements in car trucks, railway cars, and motor trucks for cars,—and that the defendants had, prior to the institution of this suit, infringed the same by the conjoint use thereof in manufacturing cars, and also by selling cars so manufactured. The bill further charges that the defendants give out and threaten that they will continue such infringement. On these alleged facts the complainant prays for an accounting, and perpetual injunction restraining such threatened infringement. The defendants’ answer puts in issue the validity of the patents and the alleged infringement thereof by the defendants. At the hearing the complainant withdrew from the consideration of the court the patents aforesaid numbered 373,639 and 418,438, and disavowed any right of recovery thereon. The case, therefore, stands submitted to the court on patents Nos. 425,653, 428,068, and 430,418. These three patents, as already seen, are dated, respectively, April 15, May 20, and June 17, 1890. Much proof was taken bearing on the issue of patentable invention, and the same has been critically and ably analyzed and presented in argument; but, inasmuch as I am not able to find satisfactory proof of infringement, I do not consider it advisable to state my conclusions on this issue. The bill was filed August 15, 1890,—four months after the date of the oldest patent, and less than two months after the date of' the youngest patent, in suit. Complainant’s counsel does not claim to have shown by direct proof any acts of infringement occurring after the date of any of the patents, but strenuously contends that the court should indulge such presumptions and draw such inferences, from acts done by the defendant four and six months before-the dates of the patents, as will establish an intention on the part of the defendants to infringe subsequent" } ]

[ { "docid": "22285394", "title": "", "text": "of an equivalency-in-fact test to determine infringement. The Court held that the instructions to the jury were legally erroneous in failing to preclude certain equivalents from the ambit of infringement. Id. at 194-95, 21 L.Ed. 39. On a challenge to the instructions, the Court stated: Unexplained, the theory assumed by the court warranted the jury in finding for the plaintiff, though the defendant in constructing his machine omitted one of the ingredients of the plaintiffs combination and substituted another in its place to perform the same function, whether the ingredient substituted for the one omitted ivas or was not newly discovered, or was or was not well known at the date of the plaintiff’s patent as a proper substitute for the one omitted from the combination constituting the plaintiffs invention. Tested by these principles, as the instruction in question must be, it is plainly erroneous, as it warranted the jury in finding for the plaintiff, whether the ingredient substituted for the one omitted was new or old, or whether the one substituted was or was not well known at the date of the plaintiff’s patent as a proper substitute for the omitted ingredient. Id. at 193-95, 21 L.Ed. 39 (emphasis added). As indicated, the Court mandated a broader range of infringing equivalents for what it termed “primary” or “pioneer” inventions or for an invention having particular merit. Continental Paper Bag, 210 U.S. at 415, 28 S.Ct. at 749-50; Miller v. Eagle Mfg. Co., 151 U.S. 186, 207, 14 S.Ct. 310, 318-19, 38 L.Ed. 121 (1894); Morley Sewing Machine Co. v. Lancaster, 129 U.S. 263, 273, 9 S.Ct. 299, 302, 32 L.Ed. 715 (1889); McCormick v. Talcott, 61 U.S. (20 How.) 402, 405, 15 L.Ed. 930 (1857); Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 63, 43 S.Ct. 322; 328, 67 L.Ed. 523 (1923). However, even in the context of a pioneer patent, the Court applied a “known equivalents” rule, albeit appropriately modified to eliminate the requirement of being known in that previously unknown art at the time the patent issued. As explained in Morley Sewing Machine:" }, { "docid": "11532830", "title": "", "text": "35 U.S.C.A. § 102(g). Pursuant to the foregoing, the Court concludes that: A. The Court has jurisdiction of the parties and of the subject matter of the issues framed by all of the pleadings herein. B. The plaintiff has maintained its burden of proof of the essential facts of its complaint. The defendant has not maintained the burden of the essential facts of any of its defenses or affirmative defenses. The law is with the plaintiff and against the defendant on each of the issues framed by the pleadings. C. United States Letters Patent 2,953,398, entitled “PIPE JOINT” as to claims 1, 2, 4, 5, 7 and 8 here in suit, is in all respects valid. D. Defendant has infringed the aforesaid claims of the patent in suit by making and selling pipe joints embodying the claimed features thereof, by inducing others to infringe the same, and also is in violation of the aforesaid claims of said patent as a contributory infringer. E. Plaintiff is entitled to: (1) An injunction against the defendant enjoining further infringement, direct or contributory, of each of the aforesaid claims 1, 2, 4, 5, 7 and 8 of the patent in suit; and, (2) An accounting, pending which, and under the authority of E-I-M Co. v. Philadelphia Gear Works, 5 Cir., 223 F.2d 36, the Court withholds a determination as to whether the infringement has been willful and deliberate and whether a punitive award is justified under Title 35 U.S.C.A. § 284. The Court also withholds a determination of the allowance of a reasonable attorney’s fee under Section 285. Jurisdiction as to both matters is specifically reserved. Counsel for plaintiff will submit an appropriate form of judgment for the Court’s consideration. . The law applicable to the facts of this case is clearly and definitely set forth by the United States Supreme Court in Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097, decided May 29, 1950. In that case it was stated as follows: “In determining whether an accused device or composition infringes a" }, { "docid": "17256616", "title": "", "text": "his ownership of the invention, and that on January 11, 1949, Ushakoff, through his attorneys, notified the Air Corps that it was infringing his patent. The May 31, 1945 letter was received 'and replied to by the Air Corps prior to June 21,1945, the date of the formal production contract for the 172,678 solar stills, and both the May 31, 1945 letter and the January 11, 1949 letter were received considerably more than 6 years prior to the filing of this suit. The evidence shows that Ushakoff did not entrap the defendant into the infringement herein charged. Summarizing, the patent here in suit, No. 2,455,835, is found to be valid; plaintiffs are found to be the rightful owners of the patent; Ushakoff’s conduct is found not to have been such as would give the defendant an implied license to use the invention, and defendant’s purchase of the solar still made in accordance with the patent is found to be an unlicensed use of plaintiffs’ invention. FINDINGS OK FACT 1. This is a patent suit under Title 28 U.S.C., Section 1498, for reasonable and entire compensation for the unlicensed use by the defendant of plaintiffs’ patented invention. United States Letters Patent No. 2,455,835, entitled “Inflatable Solar Still,” issued December 7, 1948, to plaintiff Alexis E. Ushakoff, of Beverly, Massachusetts, and 35 per cent to plaintiff Stanley A. Baron, of New Orleans, Louisiana, for the benefit of Frederick A. Middleton, John J. Finnorn, and said Stanley A. Baron, on an application for patent filed February 4,1946, by plaintiff Alexis E. Ushakoff. 2. The parties agreed at pretrial to a separation of issues for trial, and that the issues of validity and infringement of the patent by the defendant be first determined upon full proofs, findings of fact, and argument of counsel. The parties further agreed that the accounting issue, including evidence as to the number of articles procured and/or the value of the patented invention, or the extent of the liability, if any, of the defendant and the amount of reasonable and entire compensation, if any, due to plaintiffs on account thereof," }, { "docid": "13950344", "title": "", "text": "Pee Cubiam ; This case was referred to Trial Commissioner Donald E. Lane with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on May 5, 1966. Plaintiff has filed no exceptions to the commissioner’s findings or opinion and the defendant excepts only to some of the commissioner’s findings and conclusions. The case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court is in agreement with the opinion, findings and recommendation of the commissioner, with one slight additional modification, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. Therefore it is concluded that claims 3 and 5 of patent 2,580,482 are invalid, that claims 1, 2, 4, 6, 8, 9, 14, 15 and 16 of patent 2,580,482 are valid but have not been infringed by the defendant, that claims 5, 6 and 7 of patent 2,843,408 are valid and have been used by defendant without license from the patent owner, and that plaintiffs are entitled to recover for such use. Judgment is entered to that effect with the amount of recovery to be determined pursuant to Eule 47 (c) (2). OpiNiok op Commissioner Lane, Commissioner: This is a patent suit under Title 28 U.S.C. § 1498, in which plaintiffs seek to recover reasonable and entire compensation for the unauthorized use or manufacture by or for the defendant of patented inventions. Plaintiffs allege infringement of claims 1-6, 8, 9, and 14-16 of U.S. Letters Patent No. 2,580,482 entitled “Tumbuckle Lock” which issued to the plaintiffs Louis C. Stukenborg and Harold V. Utterback January 1, 1952, on an application filed July 12, 1945. Plaintiffs further allege infringement of claims 5, 6, and 7 of U.S. Letters Patent No. 2,848,408 entitled “Lock for Tumbuckle” issued to Stukenborg July 15, 1958, on an application filed June 27, 1956. Plaintiffs Stukenborg and Utterback are the owners of said patents. Plaintiff, Associated Aircraft Industries, Inc., is the exclusive licensee with" }, { "docid": "22117082", "title": "", "text": "Wall.) 230, 242, 19 L.Ed. 339 (1868) (the patentees “are protected ... against the use of any form ... that embodies substantially their ideas and mode of operation”); Blake v. Robertson, 94 U.S. (4 Otto) 728, 733, 24 L.Ed. 245 (1877) (stone-crushing machine that used rods and levers held infringed by machine that used hydraulic pressure); Tilghman v. Proctor, 102 U.S. (12 Otto) 707, 732, 26 L.Ed. 279 (1881) (various improvements did not alter the essential character of the patented process); Clough v. Barker, 106 U.S. (16 Otto) 166, 178 1 S.Ct. 188, 197, 27 L.Ed. 134 (1882) (patentee of a new combination is entitled to “hold as infringements all valve regulations, applied to such a combination, which perform the same office in substantially the same way as, and were known equivalents for, his form of valve regula tion”); Hoyt v. Horne, 145 U.S. 302, 309, 12 S.Ct. 922, 924, 36 L.Ed. 713 (1892) (“merely the use of an old and well known mechanical equivalent, and obviously intended to evade the wording of the claims of the Hoyt patent”); Deering v. Winona Harvester Works, 155 U.S. 286, 302, 15 S.Ct. 118, 124, 39 L.Ed. 153 (1894) (“Otherwise the infringer might take the most important part of a new invention and, by changing the method of adapting it to the machine to which it is an improvement, avoid the charge of infringement”). In Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147 (1929), the Court restated the oft-quoted principles: [Generally speaking, one device is an infringement of another “if it performs substantially the same function in substantially the same way to obtain the same result.... Authorities concur that the substantial equivalent of a thing, in the sense of the patent law, is the same as the thing itself; so that if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape.” Machine Co. v. Murphy, 97 U.S. [7 Otto] 120, 125 [24 L.Ed. 935]...." }, { "docid": "8857422", "title": "", "text": "the same terms and conditions as the earlier agreement. It thus appears that all production by Monark after May 24, 1966, was done under license from plaintiffs. It is well established that suit against the United States in the Court of Claims under 28 U.S.C. § 1498 is proper only when the alleged infringement is accomplished by the United States, or a United States contractor without a license to practice the invention. Accordingly, since Monark was licensed under the patents in suit for all production after May 24, 1966, plaintiffs’ claim of infringement in the present forum is barred. Plaintiffs-licensors are barred from bringing a suit in this court even if Mo-nark has failed to pay royalties to plaintiffs as required by their agreement. Yassin v. United States, 76 F.Supp. 509, 520, 110 Ct.Cl. 211, 229, 76 USPQ 466, 475 (1948); Timken-Detroit Axle Co. v. Alma Motor Co., 144 F.2d 714, 717, 62 USPQ 263, 266 (3d Cir. 1944), rev’d on other grounds, 329 U.S. 129, 67 S.Ct. 231, 91 L.Ed. 128, 71 USPQ 254 (1946); Newport News Shipbuilding & Dry Dock Co. v. Isherwood, 5 F.2d 924, 934 (4th Cir.), petition for cert. dismissed, 269 U.S. 592, 46 S.Ct. 13, 70 L.Ed. 429 (1925). It has been concluded herein-above that production by Monark in accordance with the provisions of the May 18, 1966, contract does infringe the ’872 patent. However, a review of that contract indicates that the egg product was not to be delivered to defendant until July 1966. This delivery date is, of course, after the execution of the May 24, 1966, license agreement between Mo-nark and plaintiffs. Accordingly, while it is possible that the dehydrated egg mix was produced between the May 18, 1966, contract date and the May 24, 1966, license date, the record does not clearly indicate what the facts are on this point. Indeed, the contract delivery date indicates that, if anything, production occurred after the execution of the patent license agreement. In view of this, it must be concluded that plaintiffs have failed to show that infringement of the claims of the" }, { "docid": "21319498", "title": "", "text": "steps, and there was testimony that the Marks machine could also so operate. The simultaneous operation was regarded as equivalent by defendant’s expert, and the twisting operation was not only known to the prior art but was thought by the trial court to be “of no consequence * * Defendant is not saved by the difference in feeding wheels. Not only was defendant’s mechanism thought equivalent to plaintiff’s, but also both had been taught by the prior art. Besides, the mechanism was not the gist of Marks’ novel combination as defined by the court. The court placed no weight on any “presumption of non-infringement” attaching to Briglia’s patent. Defendant would treat that patent as establishing “more than a presumption” that the accused machine does not infringe. But the statutory presumption of validity of a patent is limited only to the existence of a patentable improvement. Cantrell v. Wallick, 117 U.S. 689, 694, 6 S.Ct. 970, 29 L.Ed. 1017. It need not be controlling once sufficient evidence of infringement of the basic patent has been introduced, as was done in the case at bar. While we must accept findings of fact which are not clearly erroneous, we are not so limited as to erroneous views of the proper legal tests of infringement. See Up-Right, Inc. v. Safeway Products, Inc., 5 Cir., 315 F.2d 23; Hansen v. Colliver, 9 Cir., 282 F.2d 66. Here the finding of non-infringement was based on an unduly narrow definition of the patent’s protection. The decision as to validity of the patent and dismissal of the counterclaim is affirmed. The decision of non-infringement is reversed and the cause remanded for further proceedings consistent with this opinion. . 2. In a fully automatic machine for forming a brush having spaced sets of fibers held between a pair of twisted wires, means for supporting a continuous under wire free at one end, means for supporting a continuous upper wire free at one end, means for feeding onto the under wire and between it and the upper wire fibers spaced from each other, moans for drawing the under wire and" }, { "docid": "22285447", "title": "", "text": "Rees, 15 Wallace, 187, 21 L.Ed. 39. . The term \"pioneer” was defined in Westinghouse, 170 U.S. at 561-62, 18 S.Ct. at 718: This word, although used somewhat loosely, is commonly understood to denote a patent covering a function never before performed, a wholly novel device, or one of such novelty and importance as to mark a distinct step in the progress of the art, as distinguished from a mere improvement or perfection of what had gone before. Most conspicuous examples of such patents are the one to Howe of the sewing machine; to Morse of the electrical telegraph; and to Bell of the telephone. See also MAC Corp. v. Williams Patent Crusher & Pulverizer Co., 767 F.2d 882, 884 n. 3, 226 USPQ 515, 517 n. 3 (Fed.Cir.1985). . Nat’l Cash Reg. Co. v. Boston Cash Indicator and Rec. Co., 156 U.S. 502, 516-17, 15 S.Ct. 434, 440, 39 L.Ed. 511 (1895); Hoyt v. Horne, 145 U.S. 302, 309, 12 S.Ct. 922, 924-25, 36 L.Ed. 713 (1892); Morley Sewing Machine, 129 U.S. at 289-90, 9 S.Ct. at 308; Electric RR Signal Co. v. Hall Railway Signal Co., 114 U.S. 87, 96, 5 S.Ct. 1069, 1075, 29 L.Ed. 96 (1885); Rowell v. Lindsay, 113 U.S. 97, 102, 5 S.Ct. 507, 510, 28 L.Ed. 906 (1885); Clough v. Gilbert & Barker Mfg. Co., 106 U.S. 166, 178, 1 S.Ct. 188, 197-98, 27 L.Ed. 134 (1882); Wicke v. Ostrum, 103 U.S. 461, 469, 26 L.Ed. 409 (1880); Goodyear Dental Vulcanite v. Davis, 102 U.S. 222, 227, 26 L.Ed. 149 (1880); Imhaeuser v. Buerk, 101 U.S. 647, 656, 25 L.Ed. 945 (1879); Fuller v. Yentzer, 94 U.S. 288, 297, 24 L.Ed. 103 (1876); Fuller v. Yentzer; Same v. Goodrich, 94 U.S. 299, 300, 24 L.Ed. 107 (1876); Gill, 89 U.S. at 30, 22 L.Ed. 699; Mitchell v. Tilghman, 86 U.S. (19 Wall.) 287, 418, 22 L.Ed. 125 (1873); Gould, 82 U.S. at 194, 21 L.Ed. 39; Seymour v. Osbourne, 78 U.S. (11 Wall.) 488, 556 (1870); McCormick, 61 U.S. at 405, 15 L.Ed. 930; O’Reilly, 56 U.S. at 123, 14 L.Ed. 601; Carver" }, { "docid": "21330213", "title": "", "text": "the substance of the invention, and, although showing some change in form and position, uses substantially the same devices, performing precisely the same offices with no change in principle, constitutes an infringement.” It seems to us the language just quoted is pertinent to the situation here presented. It is true no commercial structure was manufactured under the Older patent until some five years after its issuance and when placed upon the market had a number of improved features, not expressly required by the Older specification. This same situation is true as applied to appellees’ commercial devices. The improvements, however, in each instance, were merely the result of applying such knowledge and training, as might be expected of those familiar with such problems, to the structure described and claimed in the Older patent. In Farrington v. Haywood (C.C.A.) 35 F.2d 628, on page 631, it is said: “Doubtless the defendant’s stirrer has some functions not possessed by the plaintiff’s, and it may be under some conditions an improvement thereon, but this fact also does not avoid infringement. Gordon Form Lathe Co. v. Walcott Machine Co. (C.C.A.) 32 F.2d 55.” In Temco Electric Motor Co. v. Apco Mfg. Co., 275 U.S. 319, on page 328, 48 S.Ct. 170, 173, 72 L.Ed. 298, it is said: “It is well established that an ipiprover cannot appropriate the basic patent of another, and that the improver without a license is an infringer, and may be sued as such. Cochrane v. Deener, 94 U.S. 780, 787, 24 L.Ed. 139; Cantrell v. Wallick, 117 U.S. 689, 694, 6 S.Ct. 970, 29 L.Ed. 1017; Yancey v. Enright (C.C.A.) 230 F. 641, 647; Reed v. Hughes Tool Company (C.C.A.) 261 F. 192, 194.” We therefore reach the conclusion that, while appellees’ devices have been improved over that described by Older, they perform substantially the same function and obtain the same, or at any rate, an equivalent result. It follows from this that we find that each of the claims in suit_ are infringed by appellees. So far we have assumed the validity of the patent in suit, but this" }, { "docid": "6573340", "title": "", "text": "the Smith patent read as follows: “1. An electrode for use in arc-welding, consisting of a metallic rod having thereon a covering of paper treated with a h,eat resisting compound.” “4. An electrode for use in arc-welding, consisting of a metallic rod provided with a chemically treated covering of hardened paper, substantially as described.” “7. An electrode for use in arc-welding, consisting of a metallic rod having thereon a hardened covering of paper treated with sodium silicate.” These claims, if strictly construed, cover only weldrods wrapped with hardened paper. It is conceded that paper saturated with sodium silicate baked as described in the patent and decomposed in combustion forms reducing gases which protect the weld metal. It is the broad claim of appellant that since paper is cellulose, that is, a carbohydrate, constituting the chief part of the solid framework of plants, ordinary wood, linen, paper, rayon, etc., the term “paper” covers every kind of cellulose, and the use of any kind of cellulose, together with sodium silicate, in any weldrod covering, infringes the patent. Appellee’s weldrods are covered with cellulosic substances saturated with sodium silicate in combination with other ingredients, but they are not wrapped with paper. If appellant’s patent is a pioneer patent, it is entitled to hold as infringements all known equivalents of the elements of the claims which perform the same office in substantially the same way. Clough v. Gilbert & Barker Mfg. Co., 106 U.S. 166, 1 S.Ct. 188, 27 L.Ed. 134; Morley Sewing Machine Co. v. Lancaster, 129 U.S. 263, 9 S.Ct. 299, 32 L.Ed. 715; Hildreth v. Mastoras, 257 U.S. 27, 36, 42 S.Ct. 20, 66 L.Ed. 112. The contentions as to the invalidity of the Smith patent are (1) that the patent fails to particularly point out and distinctly claim the invention now asserted, namely, the production of a reducing envelop of vapor protecting the weld metal; (2) that each of the claims is clearly anticipated by the prior art, and (3) that the invention of the Smith claims is completely disclosed in the Cravens patents, Nos. 1,260,875, and 1,260,989 (1918). The" }, { "docid": "21330214", "title": "", "text": "infringement. Gordon Form Lathe Co. v. Walcott Machine Co. (C.C.A.) 32 F.2d 55.” In Temco Electric Motor Co. v. Apco Mfg. Co., 275 U.S. 319, on page 328, 48 S.Ct. 170, 173, 72 L.Ed. 298, it is said: “It is well established that an ipiprover cannot appropriate the basic patent of another, and that the improver without a license is an infringer, and may be sued as such. Cochrane v. Deener, 94 U.S. 780, 787, 24 L.Ed. 139; Cantrell v. Wallick, 117 U.S. 689, 694, 6 S.Ct. 970, 29 L.Ed. 1017; Yancey v. Enright (C.C.A.) 230 F. 641, 647; Reed v. Hughes Tool Company (C.C.A.) 261 F. 192, 194.” We therefore reach the conclusion that, while appellees’ devices have been improved over that described by Older, they perform substantially the same function and obtain the same, or at any rate, an equivalent result. It follows from this that we find that each of the claims in suit_ are infringed by appellees. So far we have assumed the validity of the patent in suit, but this is disputed by appellees. It is charged that all of the essential features of the Older device are anticipated by the prior art, and numerous former patents and publications are shown in support of such contention. Since we have heretofore discussed and found the Older patent to include among its features and functions side walls which are to serve as barriers in the pouring of the concrete, our problem with reference to the charge of anticipation is to a considerable extent simplified. This is so, as we understand, for the reason that all of the prior art for which any serious claim is made of anticipation has reference to seals, rather than joints such as Older provided, which were to function, not only as seals, but as a means of creating and preserving an air space between the adjacent slabs of concrete. No useful purpose would be served in undertaking to analyze and compare all the various patents and publications before us, as bearing upon the question of anticipation. It is sufficient that we have" }, { "docid": "6573341", "title": "", "text": "Appellee’s weldrods are covered with cellulosic substances saturated with sodium silicate in combination with other ingredients, but they are not wrapped with paper. If appellant’s patent is a pioneer patent, it is entitled to hold as infringements all known equivalents of the elements of the claims which perform the same office in substantially the same way. Clough v. Gilbert & Barker Mfg. Co., 106 U.S. 166, 1 S.Ct. 188, 27 L.Ed. 134; Morley Sewing Machine Co. v. Lancaster, 129 U.S. 263, 9 S.Ct. 299, 32 L.Ed. 715; Hildreth v. Mastoras, 257 U.S. 27, 36, 42 S.Ct. 20, 66 L.Ed. 112. The contentions as to the invalidity of the Smith patent are (1) that the patent fails to particularly point out and distinctly claim the invention now asserted, namely, the production of a reducing envelop of vapor protecting the weld metal; (2) that each of the claims is clearly anticipated by the prior art, and (3) that the invention of the Smith claims is completely disclosed in the Cravens patents, Nos. 1,260,875, and 1,260,989 (1918). The contention as to indefiniteness has little merit. The specifications and claims of the Smith patent dearly describe the structure. It is not necessary to the validity of the patent that the inventor knew the scientific principles involved in the invention. DeForest Radio Co. v. General Electric Co., 283 U.S. 664, 686, 51 S.Ct. 563, 75 L.Ed. 1339; Diamond Rubber Co. of N.Y. v. Consolidated Rubber Tire Co., 220 U.S. 428, 435, 436, 31 S.Ct. 444, 55 L.Ed. 527. The inventor is entitled to the full scope of his patent, the proper function of which, in an article patent, is to describe the structure. Jackson Fence Co. v. Peerless Wire Fence Co., 228 F. 691, 696 (C.C.A.6). Claims 1, 4 and 7 of the Smith patent are not anticipated by the patents upon which appellee relies. The Irvine patent, No. 1,261,395 (1918), discloses a weldrod wrapped with asbestos paper and treated with iron oxid, sodium carbonate and sodium silicate. Asbestos paper is not cellulose. It is a mineral, being a form of amphibole, that is, a" }, { "docid": "151949", "title": "", "text": "in fact, the Mend-More device is the equivalent of the Brown invention and infringes. Affirmed in part, reversed in part and remanded for appropriate proceedings. . United States patent No. 2,493,876 issued to R. D. Hutchison January 10,1950. . “Miracle” was the brand name of a .machine embodying the same structure as the accused device. It has been used to designate the saw-tooth type machine. . United States patent No. 2,819,598 was issued to H. G. Mayer on January 14, 1958. The accused Mend-More machine is made by Stanford Marley Distributing Company, Inc., under a license from Mayer. The Mayer patent specification itself states that it is an improvement on the Marvel device. It should be noted that the making of patentable improvements does not avoid infringement. Ackermans v. General Motors Corp., 202 F.2d 642 (4 Cir.), cert. denied, 345 U.S. 996, 73 S.Ct. 1139, 97 L.Ed. 1403 (1953) ; Wine Ry. Appliance Co. v. Baltimore & O. R. Co., 78 F.2d 312 (4 Cir. 1935) ; Waterproof Insulation Corp. v. Insulating Con. Corp., 153 F.Supp. 626 (D.Md. 1957). As stated in Wine Ry. Appliance Co. v. Baltimore & O. R. Co., supra, 78 F.2d at 316: “Patentable difference does not of itself tend to negative infringement. It may just as well be based upon infringement, plus improvement; and improvement may lie in addition; simplification, or variance.” Where an improvement patent comprehends an earlier patent, neither of the two patentees can lawfully use the invention of the other without the other’s consent. Cantrell v. Wallick, 117 U.S. 689, 694, 6 S.Ct. 970, 29 L.Ed. 1017 (1886). . A formal disclaimer was filed in the patent office immediately after the trial. Method claim 10 is set forth below: “10. The method of restoring to original condition a distorted course of a knitted fabric one loop of which has become enlarged by the incorporation therein of material withdrawn from adjacent loops which have for this reason been reduced, comprising, placing an area of the fabric which includes the enlarged and reduced loops under light tension and, while maintaining the fabric under tension," }, { "docid": "21319497", "title": "", "text": "S.Ct. 748, 52 L.Ed. 1122; see Smith v. Snow, 294 U.S. 1, 11, 55 S.Ct. 279, 79 L.Ed. 721; 3 Walker, Patents § 450, at 1681 (Diller ed.). In the case at bar the accused' machine was the Briglia. Judge Mishler compared plaintiff’s machine with defendant’s or, which is really the same thing, compared plaintiff’s claims with defendant’s machine but limited the claims to a range of equivalency substantially defined by plaintiff’s “best mode.” Both tests are erroneous; the former because it begins with plaintiff’s machine and not plaintiff’s claims; the latter because it too narrowly construes the protected range of equivalency. It is true that narrow patents in a crowded field are not accorded as broad a range of equivalence as are pioneer patents, 3 Walker, Patents § 475. But here both defendant and his expert testified that all of Marks' claims in suit could be read on the Briglia machine. Nor could Briglia’s simultaneous pulling and twisting the wires be conclusive evidence of non-infringement. Marks’ claims did not limit these operations to separate steps, and there was testimony that the Marks machine could also so operate. The simultaneous operation was regarded as equivalent by defendant’s expert, and the twisting operation was not only known to the prior art but was thought by the trial court to be “of no consequence * * Defendant is not saved by the difference in feeding wheels. Not only was defendant’s mechanism thought equivalent to plaintiff’s, but also both had been taught by the prior art. Besides, the mechanism was not the gist of Marks’ novel combination as defined by the court. The court placed no weight on any “presumption of non-infringement” attaching to Briglia’s patent. Defendant would treat that patent as establishing “more than a presumption” that the accused machine does not infringe. But the statutory presumption of validity of a patent is limited only to the existence of a patentable improvement. Cantrell v. Wallick, 117 U.S. 689, 694, 6 S.Ct. 970, 29 L.Ed. 1017. It need not be controlling once sufficient evidence of infringement of the basic patent has been introduced," }, { "docid": "11869720", "title": "", "text": "take into account either the Hauber patent on the board, the Fleischer patent, or the Gray patent No. 1,689,670, as, without objection, it has been considered that those three are not necessary to be considered by the jury in determining the question of the validity of the patent.” As this court observed in Bianchi v. Barili, supra [168 F.2d 795] : “Before a patent can be declared invalid because of anticipation, its lack of novelty must be established beyond a reasonable doubt. Cantrell v. Wallick, supra, 117 U.S. [689] at pages 695, 696, 6 S.Ct. 970 [29 L.Ed. 1017]; 1 Walker § 63, pages 300^303; American Bell Telephone Co. v. People’s Telephone Co., C.C.N.Y., 22 F. 309, 313, affirmed, 126 U.S. 1, 572, 8 S.Ct. 778, 31 L.Ed. 863; Searchlight Horn Co. v. Victor Talking Machine Co., D.C.N.J., 261 F. 395, 401. “Particularly heavy is the attacker’s burden when the validity of the patent has been sustained by court findings. General Motors Corp. v. Kesling, 8 Cir., 164 F.2d 824, 827, certiorari denied on March 15, 1948, 333 U.S. [855], 68 S.Ct. 732 [92 L.Ed. 1135], and the many cases there cited.” Appellants contend that appellee’s and appellants’ patents, prior art, and infringement should all have been determined by the court as a matter of law, rather than submitting these questions to the jury. It is true that this court has recognized the rule that infringement may pose a legal rather than a factual question where, with all the evidence before the court, it appears that no substantial dispute of facts is presented, and that the case may be determined by a mere comparison of structures and extrinsic evidence is not needed for purposes of explanation, or evaluation of prior art, or to resolve questions of the application of descriptions to subject matter. United States v. Esnault-Pelterie, 303 U.S. 26, 30, 58 S.Ct. 412, 82 L.Ed. 625, and cases cited therein. See also Nicholl, Inc., v. Schick Dry Shaver, 9 Cir., 98 F.2d 511, 513. The grounds for invoking such a rule, however, are absent here. It is too late" }, { "docid": "23171051", "title": "", "text": "the patentee be a machine, it will be infringed by a machine which incorporates in its structure and‘operation the substance of the invention; that is, by an arrangement of mechanism which performs the same service or produces the same effect in the same way, or substantially the same way. * * * That two machines produce the same effect will not justify the assertion that they are substantially the same, or that the devices used are therefore mere equivalents for those of the other.” “Infringement of a combination patent occurs only through a combination comprising every one of its elements or a mechanical equivalent.” Guide v. Desperak, 2 Cir., 249 F.2d 145, 147. See also: Rowell v. Lindsay, 113 U.S. 97, 102, 5 S.Ct. 507, 28 L.Ed. 906; Imhaeuser v. Buerk, 101 U.S. 647, 25 L.Ed. 945. “It is well established that an improver cannot appropriate the basic patent of another, and that the improver without a license is an infringer, and may be sued as such.” Tempco Electric Motor Co. v. Apeo Co., 275 U.S. 319, 328, 48 S.Ct. 170, 173, 72 L.Ed. 298. See also: Cochrane v. Deener, 94 U.S. 780, 787, 24 L.Ed. 139; Cantrell v. Wallick, 117 U.S. 689, 694, 6 S.Ct. 970, 29 L.Ed. 1017; Chesapeake & Ohio Ry. Co. v. Kaltenbach et ah, 4 Cir., 95 F.2d 801, 804. “If the infringing device performs the same function as the patented device, it is immaterial that it also performs some other function. It is still none the less an equivalent of the patented device, and an appropriation of the patented invention.” Comptograph Co. v. Mechanical Accountant Co., 1 Cir., 145 F. 331, 338. See also: Chesapeake & Ohio Ry. Co. v. Kaltenbach, supra, and cases there cited. As said by the trial judge, an accused device cannot escape infringement by merely adding features, if it otherwise adopts the basic features of the patent. Holland Co. v. American Steel Foundries, 7 Cir., 190 F.2d 37, certiorari denied, 342 U.S. 859, 72 S.Ct. 86, 96 L.Ed. 647; Aluminum Co. of America v. Thompson, 6 Cir., 122 F.2d" }, { "docid": "7599104", "title": "", "text": "page 284, 79 L.Ed. 721, decided in 1935. An exact quotation from that case, which has never been departed from, is as follows: “It is plain from what has been said that the character of the patent and its commercial and practical success are such as to entitle the inventor to broad claims and to a liberal construction of those which he has made. Morley Sewing Machine Co. v. Lancaster, 129 U.S. 263, 273-277, 9 S.Ct. 299, 32 L.Ed. 715; Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 63, 43 S.Ct. 322, 67 L.Ed. 523; Winans v. Denmead, supra, 15 How. 341, 14 L.Ed. 717. In such circumstances, if the claim were fairly susceptible of two constructions, that should be adopted which will secure to the patentee his actual invention, rather than to adopt a construction fatal to the grant. Keystone Manufacturing Co. v. Adams, 151 U.S. 139, 144, 145, 14 S.Ct. 295, 38 L.Ed. 103; McClain v. Ortmayer, 141 U.S. 419, 425, 12 S.Ct. 76, 35 L.Ed. 800. Respondents do not avoid infringement of the method by varying the details of the apparatus by which they make use of it. Cochrane v. Deener, 94 U.S. 780, 788, 24 L.Ed. 139; Tilghman v. Proctor, 102 U.S. 707, 730, 731, 26 L.Ed. 279.” This view has been expressed by the Court of Appeals for this circuit to the same effect but in slightly different language in Chicago Patent Corp. v. Genco Inc., 7 Cir., 124 F.2d 725, 728. The Court of Appeals, speaking by Mr. Justice Linckley, said: “Apparently Beliak was the first to invent a free game pin-ball machine and while what he teaches is not strictly of pioneer character in all respects, he was a pioneer in that he first invented this unique feature. It would well seem to follow in interpreting this element that he * * * first brought into the art. To this extent the rules of construction in pioneer patents are applicable and the claims, so far as a new contribution is made, are not to be narrowly or literally construed." }, { "docid": "9675645", "title": "", "text": "BINGHAM, Circuit Judge (after stating the facts as above), The principal question raised by the defendant’s motion to vacate the interlocutory injunction and to dismiss the case is whether the plaintiff, Small, and the Coach & Car Equipment ■ Corporation, the intervening plaintiff, can maintain this suit for infringement. The determination of this question depends upon at least two of three subsidiary questions: (1) Whether the Coach & Car Equipment Corporation acquired a valid title to the patent under the so-called license contract of December 15, 1935, so that it would be entitled to damages for the defendant’s infringement of the patent after that date; and, if it did, (2) whether Small-acquired title to the patent when it issued to him on October 6, 1931, and can maintain this suit for damages for the defendant’s infringement of the patent after that date and down to December 15, 1935, when the Coach & Car Equipment Corporation acquired title to the patent; and (3) if the Coach & Car Equipment Corporation did not acquire title to the patent, then whether he can maintain the suit for damages for the entire period of the defendant’s infringement. As to the question whether the Coach & Car Equipment Corporation acquired a valid title under the so-called license contract, it appears that on December 15, 1935, the date of that contract, Small had, at least, the apparent legal title to the patent; that it had issued to him from the Patent Office in his name; that the records in the Patent Office disclosed no record of an assignment of the patent from him; and that the Coach & Car Equipment Corporation paid him a substantial consideration, in good faith and without knowledge or notice, constructive or otherwise, of any defect in his title. Burck v. Taylor, 152 U.S. 634, 653, 14 S.Ct. 696, 38 L.Ed. 578; In re Atlantic Beach Corp., D.C., 244 Fed. 828; Dunn v. New York, 205 N.Y. 342, 98 N.E. 495; United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 333, 26 S.Ct. 282, 50 L.Ed. 499; 46 C.J. p." }, { "docid": "23051285", "title": "", "text": "the AIMES system. Cort had pledged to retain that information he discovered in confidence. Thus while the defendants’ disclosure of the system to him in our view constitutes a “use” of the system, see discussion p. 541, infra, this use did not amount to a form of public disclosure which destroyed the value of the secret to the idaintiff. See Servo Corp. v. General Electric Co., 393 F.2d 551 (4th Cir. 1968) which thoroughly discusses the elements of disclosure in a trade secrets context. See also Tilghman v. Proctor, 125 U.S. 136, 146, 8 S.Ct. 894, 31 L.Ed. 664 (1888) ; In re Cawood Patent, 94 U.S. 695, 24 L.Ed. 238 (1877) ; Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 60 S.Ct. 681, 84 L.Ed. 825 (1939). . See, é. g., Westinghouse Electric and Manufacturing Co. v. Wagner Electric and Manufacturing Co., 225 U.S. 604, 32 S.Ct. 691, 56 L.Ed. 1222 where the Court put the burden of proving factors other than the infringed patent caused the profits on the in-fringer once the plaintiff patentee proved profits were made. See also Carter Products, Inc. v. Colgate-Palmolive Co., 214 F. Supp. 383 (D.Md.1963) which awarded plaintiff the profits defendant made by using one of plaintiff’s trade secrets. . Defendant’s actual profits are now usually only one of a number of elements which can be considered in measuring damages for patent infringement. See, e. g., Activated Sludge v. Sanitary District of Chicago, 64 F.Supp. 25 (N.D.Ill.1946), aff’d Per Curiam 157 F.2d 517 (7th Cir. 1946), cert. denied, 330 U.S. 834, 67 S.Ct. 970, 91 L.Ed. 1281 (1947) where the Court found no actual profits gained by the defendant, yet concluded “[t]he law is not impotent in attempting precise valuation, even though no market value exists and no loss or impairment of sales can be proven.” 64 F.Supp. at 27. See generally Note, Recovery in Patent Infringement Suits, 60 Colum.L.Rev. 840, 849-852 (1960) ; Note, The Enforcement of Rights Against Patent Infringers, 72 Harv.L.Rev. 328, 345-348 (1958). . Official Airlines Schedule Information Service, Inc. v. Eastern Airlines, Inc., 333 F.2d 672, 674" }, { "docid": "1452047", "title": "", "text": "thereafter begins to manufacture articles embodying the principle of the disclosure, labors under a heavy burden when he seeks to justify his action on the ground of independent invention, and he ought to offer something of greater weight than the verbal testimony of interested witnesses.” We do not think, however, .that plaintiff is entitled to have the Coppock and Compton patent assigned to him as prayed. If that patent has any validity as an improvement over the device of plaintiff, a question upon which we express no opinion, the improvement was not the invention of plaintiff but of Coppock and Compton, and defendant, as assignee of those patentees, is entitled to the benefit thereof, even though defendant may not, in practicing the patent, use the basic device of plaintiff without being guilty of infringement. The case .presented is the typical one of an improvement on a patented device, where the original patentee may not use the improvement without the consent of the owner of the improvement patent and where the latter may not use the device upon which he has made the improvement without the consent of the original patentee. Smith v. Nichols, 21 Wall. 112, 118, 22 L.Ed. 566; Cochrane v. Deener, 94 U.S. 780, 787, 24 L.Ed. 139; Cantrell v. Wallick, 117 U.S. 689, 694, 6 S.Ct. 970, 973, 29 L.Ed. 1017; Wine Ry. Appliance Co. v. Baltimore & O. R. Co., 4 Cir., 78 F.2d 312, 316; Federal Yeast Corporation v. Fleischmann Co., 4 Cir., 13 F.2d 570, 571; 69 C.J.S., Patents, § 295, p. 865. The judgment appealed from will be reversed and the case will be remanded for further proceedings in accordance with the principles herein laid down. Reversed and remanded." } ]

[ { "docid": "4744671", "title": "", "text": "ORDER PER CURIAM. On March 28, 1991, this Court affirmed the decision of the Board of Veterans’ Appeals (BVA) that denied appellant compensation for Post Traumatic Stress Disorder (PTSD). This affirmance was based in part on a factual finding by the BVA that there was no independent corroboration of “stressors” arising from appellant’s military service. A review of the record by this Court determined that this finding was plausible under Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). See Wood v. Derwinski, 1 Vet.App. 190, 192-93 (1991). Appellant has timely requested reconsideration of our opinion under U.S.Vet. App.R. 35(a) (Interim) (final rules effective May 1, 1991). He cites 38 U.S.C. § 354(b) (1988) for the proposition that no independent “evidence of a stressor is necessary if the evidence shows that the veteran was engaged in combat with the enemy and the claimed stressor is related to combat.” Appellant’s reliance on § 354(b) and the implementing regulations is misplaced. It is clear that two conditions must exist before the statute applies: (1) the appellant must have been engaged in combat with the enemy and (2) the injury (in this case the “stressors” triggering the PTSD) must have been consistent with the “circumstances, conditions, or hardships of such [combat] service.” As we noted in our opinion, the nature of the circumstances of his service were considered in our decision. See Wood, at 192-93. There is nothing whatever in the record, including importantly, the appellant’s own statements concerning the “stressors”, that show he was engaged in combat with the enemy when the putative stressful events occurred. One incident he relies upon was entirely unrelated to combat; the other was a scene he claims to have observed that was the aftermath of a combat action that he had not participated in but had “happened on” after the action was over. It should also be noted that in the latter event he was not present pursuant to official duty but was, at best, an unofficial observer. The Motion for Reconsideration is DENIED. STEINBERG, Associate Judge, dissenting: I respectfully dissent from the Court’s denial of reconsideration" } ]

[ { "docid": "22562343", "title": "", "text": "the facts of the case must “establish that a particular injury or disease resulting in disability was incurred coincident with service.... This may be accomplished by affirmatively showing inception or aggravation during service.” 38 C.F.R. § 3.303(a) (1990) (emphasis added). A finding of service connection, or, in this case, no service connection, is a finding of fact. The function of this Court in reviewing findings of fact by the BVA is to decide only whether such factual decisions constituted clear error. “[I]f there is a ‘plausible’ basis in the record for the factual determination,” we must affirm. Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). We have carefully examined the record and are convinced that there is a plausible basis for the factual finding of the BVA, i.e., that there was insufficient evidence to support a finding of PTSD stemming from appellant’s military service. Contrary to the contentions of appellant, the BVA was not bound to accept his uncorroborated account of his Vietnam experiences; nor was the BVA required to accept the social worker’s and psychiatrist’s unsubstantiated (if somewhat ambiguous) opinions that the alleged PTSD had its origins in appellant’s Vietnam service. This is especially true since there was a considerable passage of time between the putative stressful events recounted by appellant and the onset of the alleged PTSD. Also, as noted by the BVA, neither appellant’s military specialty (cannoneer), nor his service records, disclose that the nature of his duties exposed him to a more than ordinary stressful environment, even given the fact that service in a combat zone is stressful in some degree to all who are there, whatever their duties and experiences. It was reasonable, therefore, for the BVA to require, in this case, some corroboration of the events that appellant alleges happened to him in Vietnam. Appellant now argues in his brief that, particularly because the health professionals accepted his Vietnam experiences as truthful, the BVA was required to do the same. That misconceives the role of the BVA. The BVA has the duty to assess the credibility and weight to be given to the evidence." }, { "docid": "10162817", "title": "", "text": "v. Derwinski, 1 Vet.App. 190 (1991), in determining that appellant’s military specialty did not expose him to more than an ordinary stressful environment in Vietnam, as there was a considerable passage of time between [appellant’s] alleged stressors in the 1960’s and the first diagnosis of [PTSD] in 1988 which affect the weight to be given his statements, and as [appellant’s] alleged stressors are wholly uncorroborated, we are not bound to accept the recent diagnoses of [PTSD] as being the result of [appellant’s] wartime service. Willie A. Swann, BVA_, at 5-6 (Feb. 7, 1992). Although appellant’s appeal was filed with this Court after Manual M21-1, paragraph 7.46 went into effect, the Court concludes that the BVA satisfactorily complied with the new requirements. A finding concerning service connection, or no service connection, as in this case, is a finding of fact. Wood, 1 Vet. App. at 192. The Court reviews the BVA’s factual findings only to determine whether they are “clearly erroneous.” Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). “[I]f there is a ‘plausible’ basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, we cannot overturn them.” Id. After consideration of the record, the Court concludes that the decision of the Board is plausible. The BVA was not bound to accept appellant’s uncorroborated account of his Vietnam experiences, nor was it bound to accept the opinions of Dr. Crummie that appellant’s PTSD was secondary to- his wartime experiences in Vietnam. See Wood, 1 Vet.App. at 192; Wilson v. Derwinski, 2 Vet.App. 614, 618 (1992). As noted by the BVA, neither his service records nor his specialty (refueling specialist) indicates that he was exposed to more than an ordinary stressful environment. See Wood, 1 Vet.App. at 192-93. Appellant’s accounts of the two mortar attacks at Tan Son Nhut Air Base and Tuy Hoa Air Base, and of the Viet Cong corpse hanging in the tree, even if true, do not portray situations where appellant was exposed to more than an ordinary stressful environment, particularly where there is no" }, { "docid": "1111279", "title": "", "text": "appellant that reported several crashes but no deaths. West, BVA 92-13812, at 6. Thus, the Board articulated reasons or bases regarding the credibility of the appellant’s account of these incidents. Unlike the BVA decision reviewed by the Court in Wilson v. Derwinski, 2 Vet.App. 614 (1992), however, the June 1992 BVA decision in the instant appeal is not entirely “a model of how facts should be evaluated and weighed.” Id. at 618. The Board rejected the appellant’s account that he was almost hit by a crashing airplane on March 23, 1951, on the grounds that the appellant did not receive any burn injuries and that the deck logs do not record any personnel injuries. West, BVA 92-13812, at 7. The appellant, however, did not indicate that he was burned by any flaming debris from the airplane crash or that any military personnel were injured or killed as a result of this crash. R. at 154-55. In addition, the BVA rejected the appellant’s account of having removed live ordnance from the carrier deck on the ground that deck logs did not .report any such incidents. West, BVA 92-13812, at 7. The Board’s reasoning, however, is deficient. Where the appellant removed live ordnance in the manner described during combat, corroboration by official records is not required, provided that such lay testimony is satisfactory. See 38 C.F.R. § 3.304(f). As discussed above, the Board did not entirely discuss whether any of the claimed stressors occurred in combat. The Board also conspicuously did not discuss the appellant’s account of having witnessed the deaths of enemy soldiers trapped on a railroad trestle by aircraft flying from the U.S.S. Bon Homme Richard. See R. at 174-75. D. Inadequacy of Psychiatric Examinations As the Secretary argues in his brief, the BVA is not required to accept a physician’s diagnosis “Qjust because a physician or other health professional accepted the appellant’s description of his [wartime] experiences as credible and diagnosed the appellant as suffering from PTSD.” Wilson, 2 Vet.App. at 618. The VA’s psychiatric evaluations relied upon the appellant’s account of his experiences while serving aboard the U.S.S." }, { "docid": "10146012", "title": "", "text": "do not include any that are generally awarded in recognition of significant combat participation or acts of valor. While these facts do not preclude the presence of post-traumatic stress disorder of service origin, they are for consideration along with the other evidence of record.... Hayes, BVA_, at 6. As neither appellant’s military specialty nor his service records indicates that he was “engaged in combat with the enemy” or that his duties involved more than the ordinary stressful environment experienced by all those who served in Vietnam, the Court finds that it was reasonable for the BVA to require some corroboration of the stressors claimed by appellant in support of his claims for service connection for PTSD. See Wood v. Derwinski, 1 Vet.App. 190, 192-93 (1991), reconsidered, 1 Vet.App. 406 (1991). See also Wilson v. Derwinski, 2 Vet.App. 614, 618 (1992). The record reveals that the VA has made several attempts to obtain all evidence in support of appellant’s claims for service connection for both PTSD and a panic disorder. The record includes, inter alia, appellant’s SMRs, personal statements by appellant, statements by appellant’s family and friends, records of private medical examinations, reports of VA physical and psychiatric examinations, statements from appellant’s private social worker, a statement from a private psychiatrist, a statement from a literacy volunteer, and an evaluation by a Board medical advisor. In addition, after obtaining preliminary information from appellant regarding his alleged stressors during service in Vietnam, the RO provided such information to the ESG on at least two occasions in order to verify the stressors. Although the ESG was unable to corroborate appellant’s alleged stressors after attempting twice to do so, the record reveals that appellant failed to provide the specific information requested by the ESG to complete its inquiry. Upon review of the record, the Court finds that appellant was adequately notified of the additional information required for a successful search for the necessary evidence, i.e., the specific combat incidents, including dates, places, and types, and the names of friends in his unit killed or wounded in action, including their full names. The record reveals" }, { "docid": "10146019", "title": "", "text": "failing to accept the evidence of stressors which he proffered in support of his claim. Contrary to appellant’s contentions, while the Board is not free to ignore a VA physician’s opinion regarding service connection or an appellant’s allegation of stressors related to PTSD, the Board is not required to accept a VA examining physician’s opinion, a private physician’s opinion, a social worker’s opinion, or the opinions or contentions offered by any other source for that matter. See Wood, 1 Vet.App. at 192-93; see also Wilson, 2 Vet.App. at 618. It is the responsibility of the BVA, not this Court, to assess the credibility and weight to be given to the evidence. Wood, 1 Vet. App. at 192-93; Sanden v. Derwinski, 2 Vet.App. 97, 100 (1992). Such assessments by the BVA will be overturned by this Court only if they are “clearly erroneous.” Wood, 1 Vet.App. at 192-93; Sanden, 2 Vet.App. at 101; Gilbert at 52. “Of course, if the BVA decision fails to give sufficient ‘reasons or bases’ for accepting or rejecting critical evidence, expert or otherwise, then a remand for further proceedings may be appropriate.” Wood, supra. See also Gilbert at 55-59. Further, and again contrary to appellant’s contentions, the Board did not err in not according appellant the “benefit of the doubt” with respect to his claims for service connection for PTSD and a panic disorder. A veteran is entitled to the “benefit of the doubt” when there is an approxi mate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter. See 38 U.S.C.A. § 5107(b) (West 1991); Gilbert, 1 Vet.App. at 53-55. If a fair preponderance of the evidence supports a veteran’s claim, the claim will be granted and the rule has no application. Gilbert, 1 Vet.App. at 55. Similarly, if a fair preponderance of the evidence is against a veteran’s claim, the claim will be denied, and the rule has no application. Id. Where the Board makes a finding of fact adverse to a claimant, it has necessarily concluded that the fact is established by a" }, { "docid": "1111275", "title": "", "text": "occurrence and no further development for corroborative evidence will be required, provided that the veteran’s testimony is found to be “satisfactory,” e.g., credible, and “consistent with the circumstances, conditions, or hardships of such service.” 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d), (f); Manual M21-1, Part VI, ¶ 7.46(e)-(f); see Hayes, 5 Vet.App. at 66. Clear and convincing evidence to the contrary may serve to rebut service connection. 38 U.S.C. § 1154(b). Where, however, the VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, the veteran’s lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records which corroborate the veteran’s testimony as to the occurrence of the claimed stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d), (f); Manual M21-1, Part VI, ¶ 7.46(e)-(f). Although the new Manual M21-1 provisions and 38 C.F.R. § 3.304(f) became effective after the appellant filed his appeal with this Court, the Court and the VA are required to apply these substantive changes to the appellant’s claim to the extent that they are more liberal than the earlier provisions. See Swann v. Brown, 5 Vet.App. 229, 232 (1993); see also Hayes, 5 Vet.App. at 66-67; see also Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991) (more favorable law or regulation applies where law or regulation changes before conclusion of administrative or judicial appeal process unless Congress has provided otherwise or permitted Secretary to do so). In Zarycki v. Brown, 6 Vet.App. 91, 98 (1993), the Court held that the “reasons or bases” requirement and the statutory and regulatory background of PTSD claims adjudications require the BVA to “make specific findings of fact as to whether or not the veteran was engaged in combat with the enemy and, if so, whether the claimed stressor is related to such combat.” Further, the BVA must provide adequate reasons or bases for its finding, including a clear analysis of the evidence" }, { "docid": "10162818", "title": "", "text": "the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, we cannot overturn them.” Id. After consideration of the record, the Court concludes that the decision of the Board is plausible. The BVA was not bound to accept appellant’s uncorroborated account of his Vietnam experiences, nor was it bound to accept the opinions of Dr. Crummie that appellant’s PTSD was secondary to- his wartime experiences in Vietnam. See Wood, 1 Vet.App. at 192; Wilson v. Derwinski, 2 Vet.App. 614, 618 (1992). As noted by the BVA, neither his service records nor his specialty (refueling specialist) indicates that he was exposed to more than an ordinary stressful environment. See Wood, 1 Vet.App. at 192-93. Appellant’s accounts of the two mortar attacks at Tan Son Nhut Air Base and Tuy Hoa Air Base, and of the Viet Cong corpse hanging in the tree, even if true, do not portray situations where appellant was exposed to more than an ordinary stressful environment, particularly where there is no evidence that the mortar attacks’ impact areas were close to appellant or resulted in any casualties. As noted above, the Manual M21-1 provides that if a claimed stressor is not combat related, a history of a stressor as related by the veteran is, in itself, insufficient. Simply put, the BVA’s finding was plausible that these isolated “stressors” are not beyond the ordinary, i.e., they would not, in and of themselves, evoke symptoms in “almost everyone.” Appellant stated that there are other stressors which he cannot reveal due to his high security clearance. If appellant does not reveal these alleged stressors, together with dates and places, there is no way to corroborate, or even attempt to corroborate, the information. While Drs. Crummie and Fuller diagnosed PTSD, the BVA is not bound to accept the two opinions. See Wilson, supra. The two doctors made their diagnoses almost 20 years following appellant’s separation from service. They necessarily relied on history as related by appellant. Their diagnoses can be no better than the facts alleged by appellant. Specifically, appellant" }, { "docid": "1111276", "title": "", "text": "after the appellant filed his appeal with this Court, the Court and the VA are required to apply these substantive changes to the appellant’s claim to the extent that they are more liberal than the earlier provisions. See Swann v. Brown, 5 Vet.App. 229, 232 (1993); see also Hayes, 5 Vet.App. at 66-67; see also Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991) (more favorable law or regulation applies where law or regulation changes before conclusion of administrative or judicial appeal process unless Congress has provided otherwise or permitted Secretary to do so). In Zarycki v. Brown, 6 Vet.App. 91, 98 (1993), the Court held that the “reasons or bases” requirement and the statutory and regulatory background of PTSD claims adjudications require the BVA to “make specific findings of fact as to whether or not the veteran was engaged in combat with the enemy and, if so, whether the claimed stressor is related to such combat.” Further, the BVA must provide adequate reasons or bases for its finding, including a clear analysis of the evidence which it finds persuasive or unpersuasive with respect to that issue. See Gilbert, 1 Vet.App. at 57. C. Development of the Appellant’s Combat- and Non-Combat-Related Stressors In its June 1992 decision, the Board stated: “The veteran did not receive any awards or decorations which would indicate that he participated in direct combat, but rather, his service records indicate that he served aboard a vessel that participated briefly in combat operations.” West, BVA 9213812, at 6. With respect to some events, most notably the crash of an airplane between two gun mounts in the appellant’s presence, the appellant does not argue that he was then engaged in combat. Br. at 9. The appellant, however, does indicate that one of the other alleged stressors, the removal of live ordnance from landing aircraft, was during combat operations, when military record entries would not have been very detailed. Id. at 10. As the Court explained in Zarycki, 6 Vet.App. at 100, [i]f the BVA determines that appellant was engaged in combat with the enemy and that appellant’s alleged stressors" }, { "docid": "22562342", "title": "", "text": "that its research was unsuccessful because the lack of specific combat dates, places and types of incidents made the research impossible. The VA made a second request for information from the Environmental Support Group in November 1988. This time, at the Environmental Support Group’s suggestion, appellant’s DA Form 20 and his service record were forwarded. These documents showed the units to which appellant was assigned, his duty specialty, and the dates he was in Vietnam. The Environmental Support Group’s response was again negative, citing the vagueness of appellant’s description of events, the lack of specific locations and dates and, for some of the events, the type of some of the incidents involved (civilian deaths). A VA rating decision was issued on January 4, 1989, denying service connection for PTSD. In June 1989, appellant appealed to the BVA, which also denied service connection for PTSD. Bruce Wood, loc. no. 927709 (BVA Sept. 29, 1989). A timely appeal was filed in this Court on December 11, 1989. For service connection to be granted under the VA regulations, the facts of the case must “establish that a particular injury or disease resulting in disability was incurred coincident with service.... This may be accomplished by affirmatively showing inception or aggravation during service.” 38 C.F.R. § 3.303(a) (1990) (emphasis added). A finding of service connection, or, in this case, no service connection, is a finding of fact. The function of this Court in reviewing findings of fact by the BVA is to decide only whether such factual decisions constituted clear error. “[I]f there is a ‘plausible’ basis in the record for the factual determination,” we must affirm. Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). We have carefully examined the record and are convinced that there is a plausible basis for the factual finding of the BVA, i.e., that there was insufficient evidence to support a finding of PTSD stemming from appellant’s military service. Contrary to the contentions of appellant, the BVA was not bound to accept his uncorroborated account of his Vietnam experiences; nor was the BVA required to accept the social worker’s and" }, { "docid": "18501844", "title": "", "text": "crash, ship sinking, explosion, rape or assault,.... POW status is conclusive evidence of an in-service stressor. e. A history of a stressor as related by the veteran is, in itself, insufficient. Service records must support the assertion that the veteran was subjected to a stres-sor of sufficient gravity to evoke symptoms in almost anyone. The existence of a recognizable stressor or accumulation of stressors must be supported. It is important that the stressor be described as to its nature, severity and date of occurrence. Subparagraph e. was changed, on March 26, 1991, to read: e. If the evidence shows the veteran engaged in combat with the enemy and the claimed stressor is related to combat, no further development is necessary. See subparagraph d above. If the claimed stressor is not combat related, a history of a stressor as related by the veteran is, in itself, insufficient. Service records must support the assertion that the veteran was subjected to a stressor of sufficient gravity to evoke symptoms in almost anyone. The existence of a recognizable stressor or accumulation of stressors must be supported. It is important that the stressor be described as to its nature, severity and date of occurrence. The Secretary of Veterans Affairs argues that the previous version of paragraph 50.45(e) is the applicable version in this case because the provision was not amended until after the BVA decision was issued. The appellant argues, on the other hand, that under Karnas, if a law or regulation changes while a claim is still in the administrative or judicial process, the version more favorable to the veteran must be applied. The appellant is correct, but it avails him nothing in this case. Even under the more “liberal” version there must be evidence that he was engaged in combat with the enemy. As the excellent analysis of the BVA points out, there was no such evidence. “Contrary to the contentions of the appellant, the BVA was not bound to accept his uncorroborated account of his Vietnam experiences ...” in the face of objective evidence which indicates that those experiences did not take" }, { "docid": "16955858", "title": "", "text": "(1997). The Board thus properly reached the merits of the PTSD claim. 2. Merits Adjudication. However, even though the Court concludes that the appellant has presented a well-grounded claim for service connection for PTSD, “eligibility for a PTSD service-connection award requires” more; specifically, “(1) [a] current, clear medical diagnosis of PTSD ...; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current sympto-matology and the specific claimed in-service stressor.” Cohen, 10 Vet.App. at 138 (emphasis added); 38 C.F.R. § 3.304(f); see also Suozzi, supra. A determination of service connection is a factual finding, see Horowitz v. Brown, 5 Vet.App. 217, 221 (1993); McGraw v. Brown, 7 Vet.App. 138, 142-43 (1994), and the Court reviews BVA factfind-ing under a “clearly erroneous” standard; “if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, ... [the Court] cannot overturn them”. Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990); 38 U.S.C. § 7261(a)(4). In the instant case, the veteran’s lay testimony as to in-service stressors suffices to well ground his claim, see Cohen, supra; however, as to adjudication on the merits, “[i]f the claimed stressor is not combat related, a veteran’s lay testimony ... is insufficient to establish the occurrence of the stres-sor and must be corroborated by ‘credible supporting evidence’ ”, id. at 142 (citing Mor- eau, 9 Vet.App. at 396-96). On the other hand, “if the veteran did engage in combat with the enemy, he is entitled to have his lay statements accepted, without the need for further corroboration, as satisfactory evidence that the claimed events occurred, unless his descriptions are not consistent with the circumstances, conditions, or hardships of service or unless the BVA finds by clear and convincing evidence that a particular asserted stressful event ... did not occur\". Cohen, 10 Vet.App. at 146-47. The determination of this material fact — whether a veteran engaged in combat — is thus a critical part of the adjudication of a PTSD claim in general and specifically in this case. See id. at 145; Zarycki v." }, { "docid": "18542411", "title": "", "text": "subpara-graph c.(l), quoted above, which was contained in subparagraph e. of the September 22,1992, revision of paragraph 7.46) are substantive rules which are “the equivalent of [VA] [regulations”. See Hayes v. Brown, 5 Vet.App. 60, 67 (1993) (citing Karhas v. Derwinski, 1 Vet.App. 808, 313 (1991)). Because West and Zarycki were based on the Manual M21-1 as it existed at the time of those decisions, those opinions are no longer operative insofar as they interpreted the state of prior law and regulation to require that corroborating evidence as to the occurrence of in-service stressors must be found in service records. The Manual M21-1 provision at issue here “became effective after the appellant filed his appeal with this Court, [but] the Court and the VA are required to apply these substantive changes to the appellant’s claim to the extent that they are more liberal than the earlier provisions” unless Congress has provided otherwise. West, supra (citing Swann v. Brown, 5 Vet.App. 229, 232 (1993)); see also Hayes, supra (quoting Karnas, supra); Wilson (John) v. Derwinski, 2 Vet.App. 614, 618 (1992). C. Combat Status The veteran does not claim before this Court that he was in combat. Brief (Br.) at 5. The Board found that the veteran had not been in combat. Reviewing.this conclusion under the “clearly erroneous” standard, see Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the Court concludes that the BVA’s decision as to noncombatant status had a plausible basis in the record and thus is not subject to reversal as being clearly erroneous. Evidence in the service records indicated that during his tour of duty in Vietnam the veteran had served in a support unit which was not in combat. R. at 144, 358. D. Evidence of Noncombat Stressor For service connection to be awarded for PTSD, three elements must be present according to VA regulations: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and the claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. See 38 C.F.R. § 3.304(f); see also Manual" }, { "docid": "10162816", "title": "", "text": "support the assertion that the veteran was subjected to a stressor of sufficient gravity to evoke the symptoms in almost anyone. The existence of a recognizable stressor or accumulation of stressors must be supported. It is important the stressor be described as to its nature, severity and date of outcome. Manual M21-1, Part VI, para. 7.46(e), (f) (Sept. 21, 1992). Although these new provisions became effective after appellant filed his appeal with the Court, the Court is required to apply these substantive changes, which are more liberal than the previous standards, to appellant’s claim. See Hayes v. Brown, 6 Vet.App. 60, 66-67 (1993) (quoting Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991)). In its February 1992 decision, the BVA noted that the December 1990 decision found that the evidence of record did not actually establish a link between the diagnosis of PTSD and the veteran’s military service. Additionally, the BVA found that the augmented record remained deficient, as there was no evidence of a verifiable stressor. The BVA relied on this Court’s opinion in Wood v. Derwinski, 1 Vet.App. 190 (1991), in determining that appellant’s military specialty did not expose him to more than an ordinary stressful environment in Vietnam, as there was a considerable passage of time between [appellant’s] alleged stressors in the 1960’s and the first diagnosis of [PTSD] in 1988 which affect the weight to be given his statements, and as [appellant’s] alleged stressors are wholly uncorroborated, we are not bound to accept the recent diagnoses of [PTSD] as being the result of [appellant’s] wartime service. Willie A. Swann, BVA_, at 5-6 (Feb. 7, 1992). Although appellant’s appeal was filed with this Court after Manual M21-1, paragraph 7.46 went into effect, the Court concludes that the BVA satisfactorily complied with the new requirements. A finding concerning service connection, or no service connection, as in this case, is a finding of fact. Wood, 1 Vet. App. at 192. The Court reviews the BVA’s factual findings only to determine whether they are “clearly erroneous.” Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). “[I]f there is a ‘plausible’ basis in" }, { "docid": "10146011", "title": "", "text": "appellant’s claim....” Hamilton v. Derwinski, 2 Vet.App. 671, 675 (1992) (citing Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990)). Due to a VA General Counsel Opinion of March 17,1992, O.G.C. Prec. 07-92, which found the manual provision to be a substantive provision, the VA has issued a proposed rule which would convert paragraph 7.46 of Manual M21-1 from a manual provision to a regulation. 57 Fed.Reg. 34536, 34537 (1992), amended 57 Fed.Reg. 38095 (1992). Based on Kamas and Hamilton and VA’s proposed rule, the Court finds that Manual M21-1, paragraph 7.46, is applicable to the instant appeal. Although appellant’s appeal was filed with this Court after Manual M21-1, paragraph 7.46, went into effect, the Court’s review of the BVA decision reveals that the BVA satisfactorily complied with the new requirements. In its decision the BVA noted in pertinent part: While serving in Vietnam, the veteran was assigned to a construction engineering company (port construction), as opposed to a combat engineering company. He did not have a combat military occupational specialty, and his medals and decorations do not include any that are generally awarded in recognition of significant combat participation or acts of valor. While these facts do not preclude the presence of post-traumatic stress disorder of service origin, they are for consideration along with the other evidence of record.... Hayes, BVA_, at 6. As neither appellant’s military specialty nor his service records indicates that he was “engaged in combat with the enemy” or that his duties involved more than the ordinary stressful environment experienced by all those who served in Vietnam, the Court finds that it was reasonable for the BVA to require some corroboration of the stressors claimed by appellant in support of his claims for service connection for PTSD. See Wood v. Derwinski, 1 Vet.App. 190, 192-93 (1991), reconsidered, 1 Vet.App. 406 (1991). See also Wilson v. Derwinski, 2 Vet.App. 614, 618 (1992). The record reveals that the VA has made several attempts to obtain all evidence in support of appellant’s claims for service connection for both PTSD and a panic disorder. The record includes, inter alia, appellant’s" }, { "docid": "10146018", "title": "", "text": "panic disorder. While it can not [sic] be shown with precision when the veteran actually developed panic disorder, the evidence clearly indicates that it was not during service or for several years thereafter. The evidence overwhelmingly shows that the few episodes of panic symptoms noted in service subsided, that they do not meet the criteria for a diagnosis of panic disorder under DSM-III-R, and that, in spite of any nervousness or nightmares the veteran may have experienced shortly after discharge, chronic symptoms of panic disorder did not develop until about 10 years after service.... Id. at 18-19 (underscoring in original). Based on the evidence of record, we find the BVA’s decision denying entitlement to service connection for both PTSD and a panic disorder to be plausible. See Wood, supra; Gilbert, supra. See also Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Appellant has asserted that the Board erred in failing to accept the VA fee-based psychiatrist’s judgment as to the presence of symptoms of PTSD and in failing to accept the evidence of stressors which he proffered in support of his claim. Contrary to appellant’s contentions, while the Board is not free to ignore a VA physician’s opinion regarding service connection or an appellant’s allegation of stressors related to PTSD, the Board is not required to accept a VA examining physician’s opinion, a private physician’s opinion, a social worker’s opinion, or the opinions or contentions offered by any other source for that matter. See Wood, 1 Vet.App. at 192-93; see also Wilson, 2 Vet.App. at 618. It is the responsibility of the BVA, not this Court, to assess the credibility and weight to be given to the evidence. Wood, 1 Vet. App. at 192-93; Sanden v. Derwinski, 2 Vet.App. 97, 100 (1992). Such assessments by the BVA will be overturned by this Court only if they are “clearly erroneous.” Wood, 1 Vet.App. at 192-93; Sanden, 2 Vet.App. at 101; Gilbert at 52. “Of course, if the BVA decision fails to give sufficient ‘reasons or bases’ for accepting or rejecting critical evidence, expert" }, { "docid": "22562344", "title": "", "text": "psychiatrist’s unsubstantiated (if somewhat ambiguous) opinions that the alleged PTSD had its origins in appellant’s Vietnam service. This is especially true since there was a considerable passage of time between the putative stressful events recounted by appellant and the onset of the alleged PTSD. Also, as noted by the BVA, neither appellant’s military specialty (cannoneer), nor his service records, disclose that the nature of his duties exposed him to a more than ordinary stressful environment, even given the fact that service in a combat zone is stressful in some degree to all who are there, whatever their duties and experiences. It was reasonable, therefore, for the BVA to require, in this case, some corroboration of the events that appellant alleges happened to him in Vietnam. Appellant now argues in his brief that, particularly because the health professionals accepted his Vietnam experiences as truthful, the BVA was required to do the same. That misconceives the role of the BVA. The BVA has the duty to assess the credibility and weight to be given to the evidence. Such assessments will be overturned only if “clearly erroneous.” Gilbert, at 52. Of course, if the BVA decision fails to give sufficient “reasons or bases” for accepting or rejecting critical evidence, expert or otherwise, then a remand for further proceedings may be appropriate. See Gilbert, at 55-57, 58-59. However, in this case, we find the BVA opinion concerning this evidence to be both plausible and adequately explained. Bruce Wood, loc. no. 927709 at 3-4 (BVA Sept. 29, 1989). One other issue remains that was not directly raised by appellant but was alluded to in his brief: Did the VA adequately assist appellant in developing his claim? See 38 U.S.C. § 3007(a) (1989). Complicating this issue is the fact of the appellant’s incarceration. Obviously, in such situations the opportunity for face-to-face assistance is greatly reduced, if not eliminated; the corollary of this is the necessity of ensuring that all VA written communication is helpful and clear in explaining to a veteran what evidence he needs together with advice and help in obtaining it. In the context" }, { "docid": "18501845", "title": "", "text": "or accumulation of stressors must be supported. It is important that the stressor be described as to its nature, severity and date of occurrence. The Secretary of Veterans Affairs argues that the previous version of paragraph 50.45(e) is the applicable version in this case because the provision was not amended until after the BVA decision was issued. The appellant argues, on the other hand, that under Karnas, if a law or regulation changes while a claim is still in the administrative or judicial process, the version more favorable to the veteran must be applied. The appellant is correct, but it avails him nothing in this case. Even under the more “liberal” version there must be evidence that he was engaged in combat with the enemy. As the excellent analysis of the BVA points out, there was no such evidence. “Contrary to the contentions of the appellant, the BVA was not bound to accept his uncorroborated account of his Vietnam experiences ...” in the face of objective evidence which indicates that those experiences did not take place. See Wood v. Derwinski, 1 Vet.App. 190, 192 (1991), reconsidered, 1 Vet.App. 406 (1991). Just because a physician or other health professional accepted appellant’s description of his Vietnam experiences as credible and diagnosed appellant as suffering from PTSD does not mean the BVA was required to grant service connection for PTSD. “The BVA has the duty to assess the credibility and weight to be given the evidence. Such assessments will be overturned only if ‘clearly erroneous.’ ” Wood, 1 Vet.App. at 193 (citing Gilbert, 1 Vet.App. at 52). The BVA, in this case, has provided an unusually thorough and specific discussion of the evidence. Each claimed stressor has been discussed and the contradictions between appellant’s various claims and the information provided by the ESG pointed out. The BVA decision is a model of how facts should be evaluated and weighed. The BVA decision is “plausible” and cannot be overturned. Accordingly, the Court holds that the October 4, 1990, BVA decision is AFFIRMED." }, { "docid": "18489749", "title": "", "text": "assertion that the veteran was subjected to a stressor of sufficient gravity to evoke symptoms in almost anyone. The existence of a recognizable stressor or accumulation of stressors must be supported. It is important [that] the stressor be described as to its nature, severity and date of occurrence. This provision became effective March 17, 1992, after the date on which the veteran filed his appeal with the Court, but before the issuance of this Court’s opinion in this case. The Court has held: where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and ... will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). Substantive rules, those which have the force of law and narrowly limit administrative action, in the VA Adjudication Procedure Manual are the equivalent of Department regulations. Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990). Under Karnas, the Court is required to apply the change to this substantive rule to the appellant’s claim, as is the BVA when a case is remanded for readjudication. Appellant’s claim must be remanded for the BVA to determine whether the conceded fact of appellant’s service in a combat zone is adequately substantiated to demonstrate his having “engaged in combat with the enemy.” If so, then the application of the new Manual 21-1 provision would require that appellant’s description of the claimed stressor must be accepted unless found to be inconsistent with the circumstances of his service. The remand will also permit the BVA to address and correct the deficiencies identified by the Secretary in his motion to remand. “A remand is meant to entail a critical examination of the justification for the decision. The Court expects that the BVA will reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case.” Fletcher v. Derwinski, 1 Vet.App." }, { "docid": "1111280", "title": "", "text": "that deck logs did not .report any such incidents. West, BVA 92-13812, at 7. The Board’s reasoning, however, is deficient. Where the appellant removed live ordnance in the manner described during combat, corroboration by official records is not required, provided that such lay testimony is satisfactory. See 38 C.F.R. § 3.304(f). As discussed above, the Board did not entirely discuss whether any of the claimed stressors occurred in combat. The Board also conspicuously did not discuss the appellant’s account of having witnessed the deaths of enemy soldiers trapped on a railroad trestle by aircraft flying from the U.S.S. Bon Homme Richard. See R. at 174-75. D. Inadequacy of Psychiatric Examinations As the Secretary argues in his brief, the BVA is not required to accept a physician’s diagnosis “Qjust because a physician or other health professional accepted the appellant’s description of his [wartime] experiences as credible and diagnosed the appellant as suffering from PTSD.” Wilson, 2 Vet.App. at 618. The VA’s psychiatric evaluations relied upon the appellant’s account of his experiences while serving aboard the U.S.S. Bon Homme Richard during the Korean War. Although the Board is free to reject a claimant’s account that certain events occurred, provided that it gives reasons or bases for its decision, in this case, the Board’s determination that certain events did not occur, coupled with its determination that certain other events also did not occur, only underscores that the bases underlying the VA’s psychiat ric evaluations may have been inadequate. Those evaluations are based, in part, on certain events that the Board rejected. Therefore, the psychiatric examinations were inadequate for rating purposes. Once a claimant has submitted “evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded,” the Board has a duty to assist him in developing the facts pertinent to his claim. 38 U.S.C. § 5107(a); see 38 C.F.R. § 3.103(a) (1993); Waddell v. Brown, 5 Vet.App. 454, 456 (1993); Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); see also 38 C.F.R. § 4.2 (1993) (rating specialist must" }, { "docid": "16955853", "title": "", "text": "U.S. soldier by that name was killed in Vietnam two years after the veteran had left the country. R. at 403. In the December 31, 1996, BVA decision here on appeal, the Board acknowledged that the veteran had a current diagnosis of PTSD (R. at 4) but found that he had not engaged in combat: While the Vietnam Service Medal signifies that the veteran was assigned for duty in the Republic of Vietnam, neither this award, nor the M-14 Rifle Expert Badge and the National Defense Service Medal, in and of themselves signify exposure to combat. The report that the veteran “participated in operations” against an enemy force does not indicate that he was involved in “combat operations.” Thus, the available service department evidence of the veteran’s service does not indicate the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation. R. at 6. The BVA stated that it was “not obligated to accept the veteran’s uncorroborated account of his Vietnam experiences” (R. at 7) and thus concluded: “In the absence of [evidence of combat service], the VA cannot accept the veteran’s claimed combat stressor without verification of the claimed in[-]service stressor” (R. at 6). The Board noted that the death of Lonnie Gay had taken place two years after the veteran’s departure from Vietnam (R. at 6-7) but did not discuss any of the other stressors, concluding that his “description of the events of his service lacks the specificity required for verification; as a result, his claimed stressors have proved unverifiable”. R. at 7. II. Analysis On appeal to this Court, the appellant argues that the Court should revisit its decision in Moreau v. Brown, 9 Vet.App. 389 (1996), and hold that a current medical opinion diagnosing PTSD can suffice to verify the in-service stressors on which that diagnosis is based. The Secretary argues that the BVA decision should be vacated and the matter remanded for readjudication because the BVA did not provide an adequate statement of reasons or bases for its determination that the veteran had not" } ]

[ { "docid": "12344290", "title": "", "text": "been entered. de Jesús Saez, 721 F.2d at 851. As the First Circuit noted in de Jesús Saez: Section 362(c) provides that the stay continue as to creditor conduct not directed against property of the estate, only until dismissal, and as to conduct directed against such property, only so long as it remains in the estate. It seems self evident that there is no “estate” and hence no “property of the estate” unless there is an existing petition. Id. at 851 (emphasis added). Therefore, dismissal of a bankruptcy petition “has the simultaneous effect of undoing the bankruptcy estate and lifting the automatic stay, just as the filing of the petition creates the bankruptcy estate and imposes the automatic stay.” In re Garnett, 303 B.R. 274, 278 (E.D.N.Y.2003). In the instant case, the bankruptcy estate and the automatic stay terminated immediately upon the docketing of the dismissal order. As set forth above, once the bankruptcy petition is dismissed and the estate terminates, § 349(b)(3) provides that the former property of the bankruptcy estate revests in the entity which held the property prior to the commencement of the case. See 11 U.S.C. § 349(b)(3). Moreover, § 1326(a)(2) provides that post-petition funds received by the Chapter 13 trustee should be returned to the debtor if the case is dismissed prior to confirmation. See 11 U.S.C. § 1326(a)(2). Reading these two sections together, it is clear that upon dismissal of a Chapter 13 case, funds held by the Chapter 13 trustee are generally revested to the debtor and no longer protected by the automatic stay. It is important to note, however, that although the revesting provisions of § 349 and § 1326(a)(2) would place the subject funds back in the hands of the Debtor, the revestment is not immediate or automatic. Section 1326(a)(2) states that administrative expenses allowed pursuant to § 503(b) are to be paid out of the funds on hand if the plan is not confirmed. See 11 U.S.C. § 1326(a)(2). Therefore, before the funds may be returned to the debtor, the Chapter 13 trustee must complete the administration of the case," } ]

[ { "docid": "12190633", "title": "", "text": "Common Pleas, and on June 6, 2007, the Trustee was served with an Order and Notice of Garnishment. According to the stipulations, the Creditor did not learn of the bankruptcy until after June 1, 2007. This prompted the Creditor to obtain from the Common Pleas Court on June 8, 2007, an order ratifying its prior judgment entry. An amended non-wage garnishment was filed by the Creditor on June 11, 2007, and an Order was obtained that same day. According to the stipulations, on June 14, 2007, the Trustee filed an Answer to the Garnishment indicating that he was holding the sum of $5,995.00 in trust. On that same day, the Trustee filed a Motion to Reinstate Case for Administrative Purposes to obtain instructions from this Court regarding the proper disposition of the funds. Effective August 16, 2007, this case was reinstated. Upon dismissal of an unconfirmed chapter 13 proceeding, undistributed funds paid in by debtors revest, and the automatic stay does not forbid creditor collections actions against debtors. 11 U.S.C. §§ 349(b)(3) and 362(c)(2)(B). These provisions, however, are subject to the restrictions detailed in section 1326(a)(2) of the Code that specifically govern chapter 13 plan payments and their disposition upon dismissal. It provides as follows: A payment made under paragraph (1)(A) shall be retained by the trustee until confirmation or denial of confirma tion. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as practicable. If a plan is not confirmed, the trustee shall return any such payments not previously paid and not yet due and owing to creditors pursuant to paragraph (3) (adequate protection payments) to the debtor, after deducting any unpaid claim allowed under section 503(b) (administrative expenses). (Emphasis Supplied). While there are some decisions that suggest that section 1326(a)(2) is somehow qualified or limited by the fact that upon dismissal funds revest in debtors and are not subject to the stay provisions, they are not persuasive. Massachusetts v. Pappalardo (In re Steenstra), 307 B.R. 732, 738-741 (1st Cir. BAP 2004); In re Doherty, 229 B.R. 461, 465-467" }, { "docid": "5929989", "title": "", "text": "Indeed, none of the provisions of § 1326 provide any direction to the trustee when a case is dismissed post-confirmation. “[Section] 1326(a)(2) applies only to payments paid to the trustee after the commencement of the case but prior to confirmation or denial of confirmation, and is inapplicable to funds paid to the trustee post-confirmation; such funds revert to the debtor [upon dismissal] pursuant to § 349(b)(3).” Majkowski, 2011 WL 2652386, *2. It is section 349(b)(3) to which we must turn for direction. Upon dismissal, section 349(b)(3) revests property of the estate with the entity in which the property was vested immediately before the petition was filed. Therefore, the funds held by the Chapter 13 trustee must be returned to the debtors who made the payments under their plan. This effect of dismissal does not differ depending on whether the funds paid by the debtors were property of the estate prepetition or postpetition, as explained by Judge Ginsberg: While the Bankruptcy Code in § 349(b)(3) only deals with property that was property of the estate prepetition, the same logic should apply to postpetition property of the estate, such as a Chapter 13 debtor’s wages. It would be anomalous to give prepetition property of the estate to the debtor under § 349(b)(3) and postpetition property of the estate to creditors. For example, suppose that on Day 1, the debtor filed a Chapter 13 petition. On Day 2 the debt- or inherits property. That postpetition inheritance would undoubtedly become property of the Chapter 13 estate. Suppose further that on Day 3 the debtor’s plan calling for the inherited property and a portion of the debtor’s future wages to be paid to creditors is confirmed. On Day 4, before any of the property is distributed to creditors under the plan, the debtor exercises his right to dismiss the Chapter 13 case. Clearly the debtor would be entitled to the inherited property upon dismissal of the Chapter 13 case as opposed to the debtor’s creditors. This result follows because the Bankruptcy Code, in § 349, seeks to undo the bankruptcy upon dismissal and make it" }, { "docid": "2910009", "title": "", "text": "of the case “revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case[.]” 11 U.S.C. § 349(b)(3). The Williamses argue that the voluntary dismissal of their ease triggered section 349(b)(3) and thus the payments they made to the Trustee that were not distributed should revest to them. This is not a novel issue of law, but precedent is split between the positions taken by the Williamses and the Trustee. 1. Section 1326 Chapter 13 allows an individual debtor with regular income to adopt a repayment plan funded by future income. The debtor must file a proposed repayment plan within fourteen days after the Chapter 13 petition is filed. See Fed. R. Bank. P. 3015. The plan must provide for payments of fixed amounts to the Chapter 13 trustee. See 11 U.S.C. § 1322. Within thirty days after filing under Chapter 13, even if the plan has not yet been confirmed by the bankruptcy court, the debtor must begin making payments to the Chapter 13 trustee as provided for in the proposed plan. See id. § 1326(a)(1)(A). Section 1326 of the Bankruptcy Code governs the Chapter 13 trustee’s receipt of payments from the debtor and its distributions to creditors. Section 1326(a)(2) provides, A payment made under paragraph (1)(A) shall be retained by the trustee until confirmation or denial of confirmation. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as is practicable. If a plan is not confirmed, the trustee shall return any such payments not previously paid and not yet due and owing to creditors pursuant to paragraph (3) to the debtor after deducting any unpaid [administrative expenses]. Id. § 1326(a)(2). The Trustee argues that the second sentence of this section obligates her to distribute the funds she held after dismissal of the Williamses’ case to their creditors. The Trustee’s interpretation of the statute, however, would effectively read the word “such” out of the second sentence. See In re Tran, 309 B.R. 330, 337 (B.A.P. 9th Cir.2004). The" }, { "docid": "15302031", "title": "", "text": "debtors had listed in their schedules. Instead, with respect to the debtors’ residence, the mortgagee claimed arrears that were significantly greater than anticipated. Ultimately, the debtors declined their consent to the payment increases that would have been necessary to achieve a feasible plan. Consequently, on October 4, 2013, this court granted the trustee’s motion to dismiss this case. Although the trustee gave immediate notice of a termination of the wage order, he had already accumulated more than $3,700. In the normal course, the trustee would have returned these funds to the debtor. Before he could effect this distribution, however, the debt- or’s attorney initiated the present motion to direct the trustee to release $2,000 on account of outstanding legal fees. The trustee himself took no position on this request, but Mr. and Mrs. Radzikowski appeared in person to state their vigorous opposition. As a general rule, the dismissal of a bankruptcy case “revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case.” 11 U.S.C. § 349(b)(3). In the present instance, however, the trustee holds only moneys that were withheld from wages earned after the date of bankruptcy filing. Because these assets were not previously vested immediately before commencement of the case, section 349(b)(3) offers no guidance regarding their proper disposition. Rather, we must turn to 11 U.S.C. § 1326(a). Section 1326(a)(1)(A) of the Bankruptcy Code directs that a debtor in Chapter 13 shall make or arrange periodic payments to a trustee. The following text of 11 U.S.C. § 1326(a)(2) then speaks to the distribution of those funds: A payment made under paragraph (1)(A) shall be retained by the trustee until confirmation or denial of confirmation. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as practicable. If a plan is not confirmed, the trustee shall return any such payments not previously paid and not yet due and owing to creditors pursuant to paragraph (3) to the debtor, after deducting any unpaid claim allowed under section 503(b). Section 503(b)" }, { "docid": "17586127", "title": "", "text": "previously paid and not yet due and owing to creditors pursuant to paragraph (3) to the debtor, after deducting any unpaid claim allowed under section 503(b). (c) Except as otherwise provided in the plan or the order confirming the plan, the trustee shall make payments to creditors under the plan. 11 U.S.C. § 1326 (emphasis added). Section 1326(a)(2) must be read in context of the entire subsection. See, e.g., Massachusetts v. Pappalardo (In re Steenstra), 307 B.R. 732, 737 (1st Cir. BAP 2004) (“To begin our analysis, we find that § 1326(a)(2) cannot be read alone.... ”). As Bankruptcy Judge Hollis recently explained: This subsection applies only to plan payments made prior to confirmation. The first sentence instructs trustees to retain pre-confirmation plan payments until the court confirms a plan or denies confirmation. The next sentence tells the trustee, ‘now distribute those pre-confir-mation payments in accordance with the plan as soon as you can.’ The third sentence indicates what a trustee should do with those pre-confirmation payments if a plan is not confirmed. After the trustee distributes those pre-confirmation payments, he or she can now act according to the confirmed plan. For this portion of the bankruptcy case, section 1326(c) instructs the trustee to “make payments to creditors under the plan.” As [Nash v. Kester (In re Nash), 765 F.2d 1410 (9th Cir.1985) ] clarified, this section (previously 1326(b)) “was intended to address only the question of who should act as disbursing agent (debtor, trustee, or someone else) of Chapter 13 plan funds. Section 1326(b) [now (c) ] does not address whether the Trustee was required to continue making distributions after the first Chapter 13 case was dismissed.” Indeed, none of the provisions of § 1326 provide any direction to the trustee when a case is dismissed post-confirmation. “[Section] 1326(a)(2) applies only to payments paid to the trustee after the commencement of the case but prior to confirmation or denial of confirmation, and is inapplicable to funds paid to the trustee post-confirmation [....]” It is section 349(b)(3) to which we must turn for direction. Williams v. Marshall (In re Williams)," }, { "docid": "12190634", "title": "", "text": "provisions, however, are subject to the restrictions detailed in section 1326(a)(2) of the Code that specifically govern chapter 13 plan payments and their disposition upon dismissal. It provides as follows: A payment made under paragraph (1)(A) shall be retained by the trustee until confirmation or denial of confirma tion. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as practicable. If a plan is not confirmed, the trustee shall return any such payments not previously paid and not yet due and owing to creditors pursuant to paragraph (3) (adequate protection payments) to the debtor, after deducting any unpaid claim allowed under section 503(b) (administrative expenses). (Emphasis Supplied). While there are some decisions that suggest that section 1326(a)(2) is somehow qualified or limited by the fact that upon dismissal funds revest in debtors and are not subject to the stay provisions, they are not persuasive. Massachusetts v. Pappalardo (In re Steenstra), 307 B.R. 732, 738-741 (1st Cir. BAP 2004); In re Doherty, 229 B.R. 461, 465-467 (Bankr.E.D.Wash. 1999); In re Mishler, Jr., 223 B.R. 17, 20 (Bankr.M.D.Fla.1998); In re Schlapper, 195 B.R. 805, 806 (Bankr.M.D.Fla.1996). Further, this Court does not find persuasive the theory, that in order to harmonize sections 349(b)(3), 362(c)(2)(B) and 1326(a)(2) of the Code, the funds are returnable to debtors but subject to any statutory liens. In re Clifford, 182 B.R. 229, 231-283 (Bankr.N.D.Ill.1995). The better view is expressed in other decisions that focus on the facts that the plain and unambiguous language of section 1326(a)(2) specifically governs the disposition of chapter 13 plan payments, and that it clearly provides that the funds, minus adequate protection payments and administrative claims, should be returned to debtors. In re Davis, 2004 WL 3310531 (Bankr.M.D.Ala.2004); In re Oliver, 222 B.R. 272, 274-275 (Bankr.E.D.Va.1998); In re Walter, 199 B.R. 390, 393 (Bankr.C.D.Ill.1996); In re Bailey, 330 B.R. 775, 776-777 (Bankr.D.Or.2005). As expressed by the Court in In re Davis, the language of section 1326(a)(2) is clear and unambiguous. In such instances, courts are required to follow the principle of statutory construction that" }, { "docid": "5929980", "title": "", "text": "happens to funds paid by Chapter 13 debtors to the trustee but not yet distributed to creditors when a bankruptcy case is dismissed post-confirmation?” Plaintiffs initially argue that the funds being held by the Trustee are of inconsequential value and benefit to the estate, and should therefore be abandoned back to them. 11 U.S.C. § 554(b). However, Plaintiffs did not mention abandonment in their reply, and the court will not address this irrelevant argument herein. The Trustee asserts that the funds she holds should be disbursed to creditors in accordance with the confirmed plan, pursuant to 11 U.S.C. § 1326(a)(2): A payment made under paragraph [§ 1326(a) ](1)(A) shall be retained by the trustee until confirmation or denial of confirmation. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as is practicable. If a plan is not confirmed, the trustee shall return any such payments not previously paid and not yet due and owing to creditors pursuant to paragraph (3) to the debtor, after deducting any unpaid claim allowed under section 503(b). Relying on the second sentence of paragraph (a)(2), which is highlighted above, the Trustee concludes that she must “distribute all funds on hand as soon a[s] practicable to creditors pursuant to the confirmed plan. Thus the bankruptcy code is clear, that all funds received are to be distributed according to a confirmed plan.” Response at 2. Plaintiffs disagree, arguing that (a)(2) requires only disbursement in accordance with the plan of funds held at the time the plan is confirmed, and therefore these post-confirmation payments that have not yet been disbursed must be returned to them. For further support of her argument, the Trustee cites § 1326(c): Except as otherwise provided in the plan or in the order confirming the plan, the trustee shall make payments to creditors under the plan. Plaintiffs argue that “[s]ection 1326(c)’s obligation to pay, however, is vacated upon entry of an order dismissing the case. Section 349(b)(3) mandates it be so.” Reply at 3. Pursuant to 11 U.S.C. § 349(b)(3): Unless the court, for" }, { "docid": "8271165", "title": "", "text": "additional Code provisions that govern the disposition of assets in the bankruptcy estate in related circumstances. Section 1326(a)(2) deals with the disposition of the plan payments held by the chapter 13 trustee prior to confirmation of a plan and provides, in pertinent part: A payment made under this subsection shall be retained by the trustee until confirmation or denial of confirmation of a plan. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as practicable. If a plan is not confirmed, the trustee shall return any such payment to the debtor, after deductiny any unpaid claim allowed under section 503(b) of this title. 11 U.S.C. § 1326(a)(2) (emphasis added) . The parties’ arguments have centered on the third sentence of § 1326(a)(2). Section 349(b) addresses the disposition of estate assets upon the dismissal of a bankruptcy case and provides: Unless the court, for cause, orders otherwise, a dismissal of a case other than under section 742 of this title— (3) revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title. 11 U.S.C. § 349(b)(3). IY. CONTENTIONS OF THE PARTIES J & C’s argument may be summarized as follows: 1. Even after dismissal of a case, the court retains jurisdiction to address the disposition of estate property. 2. Under § 349(b), the court has discretion to modify the automatic re-vesting of estate property (in this case, the undistributed chapter 13 plan payments) in the entity in which the property was vested pre-petition. 3. In determining whether to exercise the authority granted to the court by § 349(b), the court should be influenced by the policy reflected in ■ § 1326(a)(2) — which governs cases in which a chapter 13 plan is not confirmed — and which provides for the payment of administrative expenses allowed under § 503(b) before the monies derived from chapter 13 plan payments are returned to a debtor. 4. The court should exercise its authority under § 349(b) to override the automatic revesting" }, { "docid": "8629199", "title": "", "text": "MEMORANDUM OPINION ALBERT E. RADCLIFFE, Chief Bankruptcy Judge. BACKGROUND This matter comes before the court on the Chapter 13 Trustee’s (Trustee) Motion for Instructions. This Chapter 13 case was filed on June 15, 2004. Creditor Wilco Distributing, Inc. (Wilco) which is a pre-petition judgment creditor, objected to confirmation. Confirmation was denied. The Debtors moved to dismiss and on March 16, 2005 the ease was dismissed. In the interim, the Chapter 13 Trustee had collected $4,800 in plan payments. After dismissal, before he could distribute the accumulated plan payments to the Debtors, Wilco served Trustee with a garnishment under state (Oregon) law. Trustee then filed the present motion for instructions. ISSUE The issue presented is whether a Chapter 13 trustee who is holding debtor’s plan payments, must honor a state law garnishment, post dismissal, after confirmation has been denied. DISCUSSION When a Chapter 13 case is dismissed without a confirmed plan, 11 U.S.C. § 1326(a)(2) provides in pertinent part as follows: A payment made under this subsection shall be retained by the trustee until confirmation or denial of confirmation of a plan... If a plan is not confirmed, the trustee shall return any such payment to the debtor, after deducting any unpaid claim allowed under section 503(b) of this title, (emphasis added). There appears to be a split of authority on this issue. Cases holding that funds held by the trustee following dismissal of an unconfirmed chapter 13 case are subject to levy or other forced collection under state law include: Massachusetts v. Pappalardo (In re Steenstra), 307 B.R. 732 (1st Cir. BAP 2004); In re Doherty, 229 B.R. 461 (Bankr.E.D.Wash.1999); and Clark v. Commercial State Bank, 2001 WL 685529 (W.D.Tex.2001). These courts reason that despite § 1326(a)(2), the bankruptcy estate terminates after dismissal and the automatic stay is no longer in force, leaving the funds held by the trustee unprotected from garnishing or levying creditors. Doherty, supra at 463; Pappa-lardo, supra (adopting Doherty). On the other hand, courts holding that the funds must be returned to the debtor largely base their reasoning on the plain language of § 1326(a)(2) which" }, { "docid": "12344287", "title": "", "text": "levy has been made shall, upon demand of the commissioner, surrender such property or rights, or discharge such obligation, to the commissioner [...]. Mass. Gen. Laws ch. 62(C), § 54(a). However, Section 1326(a)(2) of the Bankruptcy Code provides that: A payment made under this subsection shall be retained by the trustee until confirmation or denial of confirmation of a plan. If a plan is confirmed, the trustee shall distribute such payment in accordance with the plan as soon as practicable. If a plan is not confirmed, the trustee shall return any such payment to the debtor, after deducting any unpaid claim allowed under section 503(b) of this title. 11 U.S.C. § 1326(a)(2) (emphasis added). As set forth above, the bankruptcy court concluded that to the extent the MDOR’s directives under the Massachusetts statute conflict with the mandate of § 1326(a)(2), then the MDOR’s directives are “preempted.” The bankruptcy court found, therefore, that § 1326(a)(2) compels a determination that the Chapter 13 trustee must return plan payments made in the dismissed case to the Debtor. We disagree. B. The Effect of Dismissal on the Estate and the Automatic Stay. To begin our analysis, we find that § 1326(a)(2) cannot be read alone, but must be viewed in conjunction with the statutory effects of denying confirmation of a Chapter 13 plan, dismissal of the case and the automatic stay. Under § 541 of the Bankruptcy Code, the commencement of a bankruptcy case creates an estate that comprises all legal and equitable interests of the debtor in property as of the date the bankruptcy case is commenced. See 11 U.S.C. § 541(a). Moreover, subject to limited exceptions, the filing of a petition for relief automatically stays all acts against a debtor and property of the estate. See 11 U.S.C. § 362(a). The definition of property of the estate in a Chapter 13 case is broader than in other chapters of the Bankruptcy Code. In a Chapter 13 case, property of the estate includes, in addition to the property described in § 541, all property acquired by the debtor post-petition and all post-petition earnings" }, { "docid": "20612900", "title": "", "text": "a creditor holding an allowed claim secured by personal property.... (2) A payment made under paragraph (1)(A) shall be retained by the trustee until confirmation or denial of confirmation. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as is practicable. If a plan is not confirmed, the trustee shall return any such payments not previously paid and not yet due and owing to creditors pursuant to paragraph (8) to the debtor, after deducting any unpaid claim allowed under section 508(b). 11 U.S.C. § 1326(a) (emphasis supplied). The Panel has addressed the interplay between §§ 349(b)(3) and 1326(a)(2) upon dismissal in the pre-Harris case of Massachusetts v. Pappalardo (In re Steenstra), 307 B.R. 732 (1st Cir. BAP 2004). In Steenstra, the Panel stated: [O]nce the bankruptcy petition is dismissed and the estate terminates, § 349(b)(3) provides that the former property of the bankruptcy estate re-vests in the entity which held the property prior to the commencement of the case. See 11 U.S.C. § 349(b)(3). Moreover, § 1326(a)(2) provides that post-petition funds received by the Chapter 13 trustee should be returned to the debtor if the case is dismissed prior to confirmation. See 11 U.S.C. § 1326(a)(2). Reading these two sections together, it is clear that upon dismissal of a Chapter 13 case, funds held by the Chapter 13 trustee are generally revested to the debtor and no longer protected by the automatic stay. It is important to note, however, that although the revesting provisions of § 349 and § 1326(a)(2) would place the subject funds back in the hands of the Debtor, the revestment is not immediate or automatic. Section 1326(a)(2) states that administrative expenses allowed pursuant to § 503(b) are to be paid out of the funds on hand if the plan is not confirmed. See 11 U.S.C. § 1326(a)(2). Therefore, before the funds may be returned to the debtor, the Chapter 13 trustee must complete the administration of the case, including making payments for expenses related to the administration of the estate. [In re] Doherty, 229 B.R. [461,]" }, { "docid": "12764656", "title": "", "text": "funds must be returned to the debtor. See Nash v. Kester (In re Nash), 765 F.2d 1410, 1414 (9th Cir.1985); Williams v. Marshall (In re Marshall), 526 B.R. 695, 697-98 (N.D.Ill.2014); In re Hamilton, 493 B.R. 31, 39 (Bankr.M.D.Tenn.2013); In re Parker, 400 B.R. 55, 62 (Bankr.E.D.Pa. 2009); In re Slaughter, 141 B.R. 661, 663 (Bankr.N.D.Ill.1992). Judicial disagreement as to the resolution of this issue is based on the interplay of two Code provisions: § 1826(a)(2) and § 349(b). Whereas courts in the minority hold that under § 1326(a)(2) the trustee must make disbursements pursuant to the confirmed plan no matter if the case is dismissed, the majority position is under-girded by § 349(b)’s directive that dismissal revests the debtor’s post-petition earnings in the debtor. The Court must examine these two sections and determine which is applicable in this instance. 1. Section 1326 “Section 1326 of the Bankruptcy Code governs the Chapter 13 trustee’s receipt of payments from the debtor and its distributions to creditors.” Marshall, 526 B.R. at 697. It states, in relevant part: (a)(1) Unless the court orders otherwise, the debtor shall commence making payments not later than 30 days after the date of the filing of the plan or the order for relief, whichever is earlier, in the amount— (A) proposed by the plan to the trustee; Hi :¡« # ‡ (2) A payment made under paragraph (1)(A) shall be retained by the trustee until confirmation or denial of confirmation. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as is practicable. If a plan is not confirmed, the trustee shall return any such payments not previously paid and not yet due and owing to creditors pursuant to paragraph (3) to the debtor, after deducting any unpaid claim allowed under section 503(b). 11 U.S.C. § 1326. Courts in the minority hold that the second sentence of § 1326(a)(2) — “If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as is practicable” — obliges Chapter 13 trustees to" }, { "docid": "15302032", "title": "", "text": "U.S.C. § 349(b)(3). In the present instance, however, the trustee holds only moneys that were withheld from wages earned after the date of bankruptcy filing. Because these assets were not previously vested immediately before commencement of the case, section 349(b)(3) offers no guidance regarding their proper disposition. Rather, we must turn to 11 U.S.C. § 1326(a). Section 1326(a)(1)(A) of the Bankruptcy Code directs that a debtor in Chapter 13 shall make or arrange periodic payments to a trustee. The following text of 11 U.S.C. § 1326(a)(2) then speaks to the distribution of those funds: A payment made under paragraph (1)(A) shall be retained by the trustee until confirmation or denial of confirmation. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as practicable. If a plan is not confirmed, the trustee shall return any such payments not previously paid and not yet due and owing to creditors pursuant to paragraph (3) to the debtor, after deducting any unpaid claim allowed under section 503(b). Section 503(b) accords administrative status to certain claims, including “compensation and reimbursement awarded under section 330(a) of this title.” 11 U.S.C. § 503(b)(2). The Grubea firm contends that its claim for legal fees is allowable under section 330(a), so that the trustee may pay those fees prior to any distribution to the debtor under section 1326(a)(2). Sections 1326(a)(2) essentially authorizes the trustee to pay a claim for legal fees that have been “allowed.” At the time that this court granted an order of dismissal, however, the Grubea firm had not even submitted an application for allowance of its claim. Bankruptcy Courts are divided on whether they can still approve legal fees at this late stage of the current proceeding, that is, subsequent to entry of an order of dismissal. Compare In re Garris, 496 B.R. 343 (Bankr.S.D.N.Y.2013) and In re Harris, 258 B.R. 8 (Bankr.D.Idaho 2000) with In re Lewis, 346 B.R. 89, 111 (Bankr.E.D.Pa.2006). We need not decide this issue, however, because the Grubea firm is not here entitled to such payment in the facé of" }, { "docid": "20612899", "title": "", "text": "does not abrogate [] § 1326(a)(2).”) (citation omitted). Thus, §§ 349(b)(3) and 1326(a)(2) govern the trustee’s disbursement of funds in a chapter 13 case that has been dismissed pre-confirmation, but not yet closed. Unlike conversion of a chapter 13 case, which is governed by § 348, dismissal of a chapter 13 case is governed by § 349. Section 349(b)(3) provides: “Unless the court, for cause, orders otherwise, a dismissal of a case other than under section 742 of this title ... revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title.” 11 U.S.C. § 349(b)(3). However, § 349 is not the only section of the Bankruptcy Code that is implicated when a chapter 13 case is dismissed. The court must also consider § 1326(a), which provides, in pertinent part: (1) Unless the court orders otherwise, the debtor shall commence making payments ... in the amount— (A) proposed by the plan to the trustee; (C) that provides adequate protection directly to a creditor holding an allowed claim secured by personal property.... (2) A payment made under paragraph (1)(A) shall be retained by the trustee until confirmation or denial of confirmation. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as is practicable. If a plan is not confirmed, the trustee shall return any such payments not previously paid and not yet due and owing to creditors pursuant to paragraph (8) to the debtor, after deducting any unpaid claim allowed under section 508(b). 11 U.S.C. § 1326(a) (emphasis supplied). The Panel has addressed the interplay between §§ 349(b)(3) and 1326(a)(2) upon dismissal in the pre-Harris case of Massachusetts v. Pappalardo (In re Steenstra), 307 B.R. 732 (1st Cir. BAP 2004). In Steenstra, the Panel stated: [O]nce the bankruptcy petition is dismissed and the estate terminates, § 349(b)(3) provides that the former property of the bankruptcy estate re-vests in the entity which held the property prior to the commencement of the case. See 11 U.S.C. § 349(b)(3). Moreover," }, { "docid": "20612901", "title": "", "text": "§ 1326(a)(2) provides that post-petition funds received by the Chapter 13 trustee should be returned to the debtor if the case is dismissed prior to confirmation. See 11 U.S.C. § 1326(a)(2). Reading these two sections together, it is clear that upon dismissal of a Chapter 13 case, funds held by the Chapter 13 trustee are generally revested to the debtor and no longer protected by the automatic stay. It is important to note, however, that although the revesting provisions of § 349 and § 1326(a)(2) would place the subject funds back in the hands of the Debtor, the revestment is not immediate or automatic. Section 1326(a)(2) states that administrative expenses allowed pursuant to § 503(b) are to be paid out of the funds on hand if the plan is not confirmed. See 11 U.S.C. § 1326(a)(2). Therefore, before the funds may be returned to the debtor, the Chapter 13 trustee must complete the administration of the case, including making payments for expenses related to the administration of the estate. [In re] Doherty, 229 B.R. [461,] 464 [ (Bankr.E.D.Wash.1999) ]. Id. at 738 (footnote omitted). Pursuant to § 1326(a)(2), a debtor’s attorney is entitled to payment of attorney’s fees prior to disbursement of the undistributed plan payments to the debtor, if the fees constitute a § 503(b) administrative expense claim. Section 503(b)(2) provides: “After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of this title, including ... compensation and reimbursement awarded under section 330(a) of this title[.]” 11 U.S.C. § 503(b)(2). Section § 330(a)(4)(B), in turn, provides: In a chapter 12 or chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debtor’s attorney for representing the interests of the, debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section. 11 U.S.C. § 330(a)(4)(B). In this case, Attorney White sought approval of his fees and expenses under § 330 and the court awarded" }, { "docid": "5929988", "title": "", "text": "Slaughter’s and Tran’s interpretation of § 1326(a)(2). This subsection applies only to plan payments made prior to confirmation. The first sentence instructs trustees to retain pre-confirmation plan payments until the court confirms a plan or denies confirmation. The next sentence tells the trustee, ‘now distribute those pre-confirmation payments in accordance with the plan as soon as you can.’ The third sentence indicates what a trustee should do with those pre-confirmation payments if a plan is not confirmed. After the trustee distributes those pre-confirmation payments, he or she can now act according to the confirmed plan. For this portion of the bankruptcy case, section 1326(c) instructs the trustee to “make payments to creditors under the plan.” As Nash clarified, this section (previously 1326(b)) “was intended to address only the question of who should act as disbursing agent (debtor, trustee, or someone else) of Chapter 13 plan funds. Section 1326(b) does not address whether the Trustee was required to continue making distributions after the first Chapter 13 case was dismissed.” Nash, 765 F.2d at 1418 n. 1. Indeed, none of the provisions of § 1326 provide any direction to the trustee when a case is dismissed post-confirmation. “[Section] 1326(a)(2) applies only to payments paid to the trustee after the commencement of the case but prior to confirmation or denial of confirmation, and is inapplicable to funds paid to the trustee post-confirmation; such funds revert to the debtor [upon dismissal] pursuant to § 349(b)(3).” Majkowski, 2011 WL 2652386, *2. It is section 349(b)(3) to which we must turn for direction. Upon dismissal, section 349(b)(3) revests property of the estate with the entity in which the property was vested immediately before the petition was filed. Therefore, the funds held by the Chapter 13 trustee must be returned to the debtors who made the payments under their plan. This effect of dismissal does not differ depending on whether the funds paid by the debtors were property of the estate prepetition or postpetition, as explained by Judge Ginsberg: While the Bankruptcy Code in § 349(b)(3) only deals with property that was property of the estate prepetition," }, { "docid": "5929981", "title": "", "text": "any unpaid claim allowed under section 503(b). Relying on the second sentence of paragraph (a)(2), which is highlighted above, the Trustee concludes that she must “distribute all funds on hand as soon a[s] practicable to creditors pursuant to the confirmed plan. Thus the bankruptcy code is clear, that all funds received are to be distributed according to a confirmed plan.” Response at 2. Plaintiffs disagree, arguing that (a)(2) requires only disbursement in accordance with the plan of funds held at the time the plan is confirmed, and therefore these post-confirmation payments that have not yet been disbursed must be returned to them. For further support of her argument, the Trustee cites § 1326(c): Except as otherwise provided in the plan or in the order confirming the plan, the trustee shall make payments to creditors under the plan. Plaintiffs argue that “[s]ection 1326(c)’s obligation to pay, however, is vacated upon entry of an order dismissing the case. Section 349(b)(3) mandates it be so.” Reply at 3. Pursuant to 11 U.S.C. § 349(b)(3): Unless the court, for cause, orders otherwise, a dismissal of a case other than under section 742 of this title — ... (3) revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title. One commentator frames the issue: “If a plan was confirmed, the requirement in § 1326(a)(2) that the trustee distribute any payments received from the debtor in accordance with the plan collides at dismissal with the revesting of property of the estate under § 349(b)(3).” Keith M. Lundin & William H. Brown, Chapter 13 Bankruptcy, 4th Ed., § 338.1, at ¶ 17, Sec. Rev. June 16, 2004, www.Chl3online.com. Plaintiffs argue that since, when a case is dismissed, § 349(b) revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case, all funds paid into the plan but not yet distributed are revested in the Debtors. Precedent is split along the lines drawn by Plaintiffs and the Trustee. The case law supporting" }, { "docid": "13553336", "title": "", "text": "the powers granted to the State upon the filing of the warrant, the structure of the withhold and deliver statute and the provision in the statute for entry of a default judgment against the party holding the funds, leads this court to conclude the withhold and deliver order is functionally the equivalent of a writ of garnishment. The State’s lien would only come into existence when the Notice and Order to Withhold and Deliver was served. Before the Court can decide whether this imposition of a state lien on the funds held by the Trustee is an improper interference with the bankruptcy process, the Court must consider the Bankruptcy Codes directions as to the disposition of property upon dismissal of the case. C. Disposition of Former Estate Property. Once the bankruptcy petition is dismissed and the estate terminates, the question becomes what happens to the former property of the estate. The language of 11 U.S.C. § 349(b)(3) is consistent with the conclusion that the estate terminates upon dismissal. Section 349(b)(3) provides that upon dismissal property of the estate revests in the entity which held the property prior to commencement of the case. Section 349 applies to all bankruptcies and thus does not specifically address post-petition funds paid to the Chap ter 13 Trustee by the debtor or on behalf of the debtor. The disposition of post-petition funds received by the Chapter 13 Trustee is addressed in 11 U.S.C. § 1326(a)(2). This section directs that post-petition payments be returned to the debtor if the case is dismissed prior to confirmation. There appears to be no dispute that the funds at issue represent post-petition payments to the Trustee by or on behalf of the Debtors. Therefore, upon dismissal the funds revested in the Debtors and they are no longer protected by the automatic stay. While it is clear that the funds at issue in this case revest in the Debtors upon dismissal, the Chapter 13 Trustee must complete his administration of the case before the funds can be returned to the Debtors. 11 U.S.C. § 1326(a)(2). In re Nash, 765 F.2d 1410" }, { "docid": "8271164", "title": "", "text": "are non-routine). On its face, LBR 2016-2 merely dispenses with the chapter 13 debt- or’s counsel obligation to submit time records with a fee application. In practice, LBR 2016-2 may create a presumptively reasonable counsel fee amount for those chapter 13 cases that achieve the entry of a confirmation order. The next relevant statutory provision is 11 U.S.C. § 503(b)(2). Section 503(b)(2) provides that after notice and hearing, the court may allow administrative expenses, including “compensation and reimbursement awarded under section 330(a) of this title.” Thus, compensation allowed to the debtor’s counsel in a chapter 13 bankruptcy case is an administrative expense allowable under 11 U.S.C. § 503(b), even though counsel is not appointed by the court and represents the interests of the debtor, rather than the interests of the bankruptcy estate. Compare Lamie v. U.S. Trustee, 540 U.S. 526, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (counsel for chapter 7 debtor not entitled to compensation under 11 U.S.C. § 330 unless counsel is employed pursuant to 11 U.S.C. § 327). Finally, there are two additional Code provisions that govern the disposition of assets in the bankruptcy estate in related circumstances. Section 1326(a)(2) deals with the disposition of the plan payments held by the chapter 13 trustee prior to confirmation of a plan and provides, in pertinent part: A payment made under this subsection shall be retained by the trustee until confirmation or denial of confirmation of a plan. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as practicable. If a plan is not confirmed, the trustee shall return any such payment to the debtor, after deductiny any unpaid claim allowed under section 503(b) of this title. 11 U.S.C. § 1326(a)(2) (emphasis added) . The parties’ arguments have centered on the third sentence of § 1326(a)(2). Section 349(b) addresses the disposition of estate assets upon the dismissal of a bankruptcy case and provides: Unless the court, for cause, orders otherwise, a dismissal of a case other than under section 742 of this title— (3) revests the property of the" }, { "docid": "2910008", "title": "", "text": "but approximately $16,868.24 had not yet been distributed at the time of the dismissal. On November 15, 2011, the Williamses commenced an adversary proceeding against the Trustee seeking return of the funds she held. On February 9, 2012, the Williamses moved for judgment on the pleadings in the adversary proceeding and, on March 13, 2013, the bankruptcy court granted judgment in favor of the Williamses. See Williams v. Marshall (In re Williams), 488 B.R. 380 (Bankr.N.D.Ill. 2013). The Trustee appealed. ANALYSIS The legal question raised by this appeal arises from the interplay between two statutory provisions. On one hand, section 1326 of the Bankruptcy Code, 11 U.S.C. § 101 et seq., requires a Chapter 13 trustee to distribute payments it receives from the debtor to creditors as set forth in the plan. 11 U.S.C. § 1326. The Trustee argues that it is obligated under this section to distribute the funds it held at the time of dismissal as provided in the plan. On the other hand, section 349(b)(3) of the Bankruptcy Code provides that dismissal of the case “revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case[.]” 11 U.S.C. § 349(b)(3). The Williamses argue that the voluntary dismissal of their ease triggered section 349(b)(3) and thus the payments they made to the Trustee that were not distributed should revest to them. This is not a novel issue of law, but precedent is split between the positions taken by the Williamses and the Trustee. 1. Section 1326 Chapter 13 allows an individual debtor with regular income to adopt a repayment plan funded by future income. The debtor must file a proposed repayment plan within fourteen days after the Chapter 13 petition is filed. See Fed. R. Bank. P. 3015. The plan must provide for payments of fixed amounts to the Chapter 13 trustee. See 11 U.S.C. § 1322. Within thirty days after filing under Chapter 13, even if the plan has not yet been confirmed by the bankruptcy court, the debtor must begin making payments to the Chapter" } ]

[ { "docid": "3848234", "title": "", "text": "or necessary. FHA v. Burr, supra, 309 U.S. at 249, 60 S.Ct. at 492 (footnote omitted). Finally, we note that Congress has clearly demonstrated the ability to restrict its consent to suits so as not to include garnishment when this result was intended. For example, the Commissioner of Education may “sue and be sued * * * ; but no * * * garnishment * * * shall be issued against the Commissioner or property under his control * * 20 U.S.C. § 1132c-2-(b)(2). Similarly, the Administrator of the Small Business Administration may “sue and be sued * * * ; but no * * * garnishment * * * shall be issued against the Administrator or his property * * 15 U.S.C. § 634(b)(1). Even though Congress restricted the consent to suit for the USPS in two limited ways, the Act is silent as to garnishment. Therefore, we conclude, as did the Seventh Circuit in Standard Oil Div., American Oil Co. v. Starks, 528 F.2d 201 (7th Cir. 1975), that there is no basis in law or policy for blocking these garnishment proceedings. Reversed. . The Honorable John K. Regan, United States District Judge for the Eastern District of Missouri. . Congress restricted the consent to suit in two respects: (1) by the applicability of the Federal Tort Claims Act and (2) procedural matters relating to suits against the United States. 39 U.S.C. § 409. LAY, Circuit Judge, concurring. I suggest there exists an alternative ground for our holding that the Postal Service can be garnished. In 1975 the Seventh Circuit held that the United States Postal Service is not immune to garnishment procedures, reversing two judgments of the United States District Court for the Northern District of Illinois. Motions for rehearing and rehearing en banc were denied on February 10, 1976. Standard Oil Div., Am. Oil Co. v. Starks, 528 F.2d 201 (7th Cir. 1975). The government did not petition for certiorari. I would hold that, in light of this decision, the United States Postal Service is collaterally estopped to relitigate the issue in this court. In both" } ]

[ { "docid": "2776798", "title": "", "text": "government employee, and the Court held that it would liberally construe the waiver of immunity (in this clearly covered substantive area) so as to permit the use of this procedural device. Said the Court, Clearly the words ‘sue and be sued’ in their normal connotation embrace all civil process incident to the commencement or continuance of legal proceedings. ... To say that Congress did not intend to include such civil process [as garnishment] in the words ‘sue and be sued’ would in general deprive suits of some of their efficacy. 309 U.S. at 245-46, 60 S.Ct. at 490. It is worthy of note that the Supreme Court’s authority for its comment that waivers are to be liberally construed is Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784 (1939), in which the question was again a procedural one, involving whether a tort or a contract label was to be given to a claim against a government agency arising out of agency contracts made “in due exercise of its powers.” 306 U.S. at 387, 59 S.Ct. at 517. If the action was denominated a tort action, it would be barred; if it was called a contract action, it would not be. Neither label would have been inappropriate, so the Court chose to allow the suit. In the case before this Court, of course, we are faced with an action that is barred under either label. The procedural question is not determinative. Here we must define the substantive area to which Congress intended that its waiver of immunity should apply. Congress did not waive immunity as to those unauthorized actions which plaintiff alleges that government employees performed. Nothing in this conclusion is inconsistent with the Supreme Court’s opinions in Burr and Keifer. In any event, whether waivers are to be construed liberally or strictly, the only possible' construction that can be placed on the “sue and be sued” clause of 12 U.S.C. § 1702 is that it does not comprise a waiver of immunity against suits for activities not authorized in the cited subchapters. The" }, { "docid": "16746976", "title": "", "text": "with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the “sue and be sued.” clause in a narrow sense. In the absence of such showing, it must be presumed that when Congress launched a governmental agency into the commercial world and endowed it with authority to “sue or be sued,” that agency is not less amenable to judicial process than a private enterprise under like circumstances would be. Clearly the words “sue and be sued” in their normal connotation embrace all civil process incident to the commencement or continuance of legal proceedings. Id. at 245, 60 S.Ct. at 490 (footnote omitted). See also Kosak v. United States, — U.S. -, - n. 9, 104 S.Ct. 1519, 1523 n. 9, 79 L.Ed.2d 860 (1984) (“ ‘The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.’ ”) (quoting Anderson v. Hayes Constr. Co., 243 N.Y. 140, 147, 153 N.E. 28, 29-30 (1926) (Cardozo, J.)). In May Department Stores Co. v. Williamson, 549 F.2d 1147, 1148 (8th Cir.1977), we followed Burr and held that, in enacting § 401(1), Congress waived the Postal Service’s immunity from state garnishment proceedings. Thus, the cases relied upon by the Court today for the general proposition that prejudgment interest is not available in Title YII actions against the government are not in point, because none of those cases involved a Title VII suit against an agency empowered to “sue and be sued.” Accord, White v. Bloomberg, 501 F.2d 1379, 1385-86 (4th Cir.1974) (holding Postal Service subject to award of postjudgment interest in suit brought under the Back Pay Act); see also Richerson v. Jones, 551 F.2d 918, 925-26 n. 11 (3d Cir.1977). The question here is not whether “Congress has ... expressed an affirmative in tention to allow interest.” Ante at 1329 (footnote omitted)." }, { "docid": "22957359", "title": "", "text": "provided for in the Reorganization Act itself, Congress exempted the Postal Service from all “Federal law[s] dealing with public or federal contracts, property, works, officers, employees, budgets or funds.” 39 U.S.C. § 410 (1976). See H.R.Rep.No.1104, 91st Cong., 2d Sess., reprinted in [1970] U.S.Code Cong. & Ad.News 3649, 3674. In addition, by establishing a special self-sustaining Postal Service Fund within the Treasury Department, and by entrusting the Service with broad financing powers, Congress meant to put the Postal Service on an independent financial basis, requiring only transitional appropriations through the Congressional budgetary process. See Standard Oil Div., American Oil Co. v. Starks, 528 F.2d 201, 203 (7th Cir. 1975); 39 U.S.C. §§ 2003-2009 (1976). In light of these considerations, virtually all courts that have considered the question have concluded that the Postal Service is not immune, as is the federal government generally, from commercial or judicial garnishment proceedings. See, e.g., Standard Oil Div., American Oil Co. v. Starks, 528 F.2d 201 (7th Cir. 1975); Beneficial Finance Co. v. Dallas, 571 F.2d 125 (2d Cir. 1978); May Dept. Stores Co. v. Williamson, 549 F.2d 1147 (8th Cir. 1977). Moreover, in reaching this conclusion, this court, in Standard Oil Div., American Oil Co. v. Starks, took issue, both factually and legally, with the Postal Service’s contention that it was entitled to immunity either because “it ha[d] not been ‘launched into the commercial world’ ” 528 F.2d at 204, or because it was performing an exclusively governmental function. Speaking for a unanimous panel, Judge Wood stated: Factually [the Postal Service’s] operations cannot be described as “exclusively” governmental. Indeed most of its work is not governmental in nature. The powers that are set out in § 401 and outlined above in Part II of this opinion are powers that are common to any business organization. The delivery of mail itself is not inherently an operation that must be government-operated and in fact is not exclusively so operated today. The United Parcel Service is but one example of a private mail delivery system; in addition, Consumer Services Corporation in Ohio, Private Postal System- of America" }, { "docid": "12066312", "title": "", "text": "of the CDA, regardless of independent statutory grants of jurisdiction such as the “sue and be sued” provision of the Small Business Act. We disagree_ In North Side Lumber Co. v. Block, 753 F.2d 1482, 1486 (9th Cir.1985), we interpreted the CDA’s amendment of the Tucker Act narrowly, holding that it withdrew district court jurisdiction under the Tucker Act over contract claims for damages not exceeding $10,000, but otherwise left existing jurisdiction intact_ We ... [conclude] that claims against the United States may be entertained by the district courts, regardless of the amount sought, so long as there exists a basis for jurisdiction independent of the Tucker Act. Accordingly, we hold, on the authority of [the “sue and be sued” provision and cases interpreting it] ..., that the district court has subject matter jurisdiction over [the] claims against the SBA. Id. (citation and footnotes omitted). Liberty Construction is fatal to the district court’s reasoning in this case. The Small Business Act’s “sue and be sued” provision, 15 U.S.C. § 634(b)(1), is virtually identical to the PRA’s “sue and be sued” provision, 39 U.S.C. § 401(1). Although the Small Business Act’s provision does include a grant of jurisdiction to the federal courts that is absent from 39 U.S.C. § 401(1), that deficiency is remedied by 39 U.S.C. § 409(a), which grants the district courts original but not exclusive jurisdiction over actions by or against the USPS. There is accordingly no basis for differentiating between the two statutory schemes. The USPS attempts to distinguish Liberty Construction on the ground that the CDA specifically lists the Postal Service, but not the SBA, as an “executive agency” within the scope of the statute. See 41 U.S.C. § 601(2). In Liberty Construction, however, we clearly assumed that the CDA did in fact encompass the SBA’s contracts, see Liberty Constr., 9 F.3d at 801 (analyzing the preemption issue in terms of whether “district court jurisdiction [exists] over contract claims within the scope of the CDA ”) (emphasis added); the USPS’s argument is thereby stripped of its force. Therefore, applying Liberty Construction and the Supreme Court’s admonition" }, { "docid": "16746973", "title": "", "text": "a “sue and be sued clause\" in the National Housing Act made the Federal Housing Administration subject to garnishment for moneys due to an employee. In so holding the Court remarked that \"clearly the words 'sue and be sued' in their normal connotation embrace all civil process incident to the commencement or continuance of legal proceedings.\" Id. at 245, 60 S.Ct. at 490. Unlike the district court in Milner, we believe the controlling statute is Title VII. Burr and the line of cases following it are thus inapposite to the issue in this case. We disagree with the Milner court's method of analysis, and we decline to adopt either its reasoning or its conclusion. ARNOLD, Circuit Judge, dissenting. The Court’s analysis is founded on the assumption that because the plaintiff’s cause of action arose under Title VII, any waiver of sovereign immunity with respect to prejudgment interest must be found in Title VII rather than in the Postal Reorganization Act of 1970, 39 U.S.C. § 401(1). Neither of the cases cited for this novel proposition goes so far. Murray v. United States, 686 F.2d 1320, 1324-25 (8th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983), rejected the argument “that a waiver of sovereign immunity must be implied where it is alleged that the IRS has failed to comply with the seizure and sale provisions in the Internal Revenue Code,” because, otherwise, “the IRS would be free to violate Congressional mandates with impunity.” Garcia v. United States, 666 F.2d 960, 966 (5th Cir. Unit B), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982), held that Title V of the Organized Crime Control Act does not waive sovereign immunity so as to enable a former protected witness to sue for damages for his allegedly wrongful expulsion from the federal Witness Protection Program. Both of these cases merely applied the well-established rule that a waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). Neither case" }, { "docid": "5355818", "title": "", "text": "its consent to be sued in any court define that court’s jurisdiction to entertain the suit.’ ” United States v. Testan, 424 U.S. 392, 399, [96 S.Ct. 948, 953, 47 L.Ed.2d 114] (1976), quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). See also Bor-Son Building Corp. v. Heller, No. 77-1632, 572 F.2d 174, at 177 (8th Cir. March 8, 1978). This general rule of sovereign immunity has also long been applied to suits seeking to garnish the wages of employees of the United States. See, e. g., Buchanan v. Alexander, 45 U.S. (4 How.) 20, 11 L.Ed. 857 (1846). Although the general rule of immunity from garnishment remains intact, courts have been liberal in finding that the immunity has been waived. The most frequent basis for finding a waiver of immunity, and the only basis to do so in this case, has been congressional enactment of statutes authorizing federal agencies to sue and be sued in courts of competent jurisdiction. See, e. g., Reconstruction Finance Corp. v. Menihan Corp., 312 U.S. 81, 61 S.Ct. 485, 85 L.Ed. 595 (1941); Bor-Son Building Corp. v. Heller, supra; May Dept. Stores Co. v. Williamson, 549 F.2d 1147 (8th Cir. 1977). As we have recently noted, the words “sue and be sued” normally embrace all civil process incident to legal proceedings, including garnishment procedures. See May Dept. Stores Co. v. Williamson, supra. The “sue and be sued” clause covering the Veterans Administration, 38 U.S.C. § 1820(a)(1), as it read at the time this suit was filed, provided: (a) Notwithstanding the provisions of any other law, with respect to matters arising by reason of this chapter, the Administrator may— (1) sue and be sued in the Administrator’s official capacity in any court of competent jurisdiction, State or Federal . At first blush, this “sue and be sued” clause might appear to be a waiver of immunity in regard to garnishment proceedings. One court has so held. See Chicago Housing Authority v. Davis, No. 75 C 2133 (N.D.Ill. Nov. 29, 1975). We are persuaded, however, that the Davis" }, { "docid": "2793296", "title": "", "text": "ALVIN B. RUBIN, District Judge: In each of these consolidated cases, creditors are attempting to garnish the wages of employees of the United States Postal Service. The Postal Service has moved for a dismissal on the ground that it is not subject to garnishment proceedings. The reorganized Postal Service is an agency of the federal government with express statutory power to sue and be sued. 39 U.S.C.A. § 401(1). In F. H. A. v. Burr, 1940, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724, the Supreme Court held that garnishment proceedings could be filed against such an agency to compel it to withhold from an employee’s wages sums due that employee’s creditor. The Court reasoned that, in giving consent for the agency to sue and be sued, Congress had authorized garnishment proceedings as well as other types of suits. This is generally the law with respect to such agencies. 3A Moore’s Federal Practice ¶ 17.23 at 816. If the Postal Service is to be held immune, an exception to the general rule must be recognized. The Postal Service is unlike many other federal agencies authorized to “sue and be sued”. It discharges a purely governmental function — delivery of the mails. While it also delivers packages in competition with private companies, its major function is exclusively governmental. However, this does not, of itself, remove the Postal Service from the ambit of the Burr decision. See White v. Bloomberg, 4 Cir. 1974, 501 F.2d 1379, 1386. The Court said in Burr that an exception to the broad language authorizing a federal agency to “sue and be sued” can be implied only upon a showing that “it was plainly the purpose of Congress to use the ‘sue and be sued’ clause in a narrow sense.” 60 S.Ct. at 490. Such a restrictive purpose can be deduced if subjecting the Postal Service to garnishment would lead to a “grave interference with the performance of a governmental function.” Id. The Government urges that this would result from allowing garnishment, but it offers no evidence that this would occur. Some district courts have agreed" }, { "docid": "17249812", "title": "", "text": "to USPS in making it an “independent establishment,” operating in a “business-like” way to make the delivery of the mail “a self-supporting enterprise.” Congress knows well enough how to draw such statutes. In addition to the forty cited in Keifer, supra, 306 U.S. at 390-91, n. 3, 59 S.Ct. 516, there have been five statutes of that type enacted: 15 U.S.C. § 634(b)(1); 38 U.S.C. § 1820(a)(1); 12 U.S.C. § 181(a); 12 U.S.C. § 341; 20 U.S.C. § 1132C-2(b)(2); 35 U.S.C. § 1154. Moreover, in the Act here, the Congress specifically restricted the consent to suit in two respects only: (1) the applicability of the Federal Tort Claims Act and (2) procedural matters relating to suits against the United States. 39 U.S.C. § 409. These specific and isolated limitations indicate beyond doubt that the waiver to sue and be sued applied to all other litigation. See KSK Jewelry Co. v. Chicago Sheraton Corp., 283 F.2d 8, 11 (7th Cir. 1960); White v. Bloomberg, 501 F.2d 1379, 1386 (4th Cir. 1974); Sutherland, Statutory Construction § 47.23. Since both Burr and Menihan involved garnishments and are both prior in time of the Postal Reorganization Act, it is reasonable to assume that the Congress intended that the “sue and be sued” clause embraced garnishment proceedings against the USPS. We also note that the widespread dissatisfaction with the doctrine of sovereign immunity has continued unabated. Byse, Proposed Reforms in Federal Non-statutory Judicial Review: Sovereign Immunity, Indispensable Parties, Mandamus, 75 Harv.L.Rev. 1479 (1962); 3 K. C. Davis, Administrative Law Treatise, ch. 27 (1958, Supp.1965); L. Jaffe, Judicial Control of Administrative Action, 197-98, 213-31, 299 n. 123 (1965); Carrow, Sovereign Immunity in Administrative Law — a New Diagnosis, 9 J.Pub.Law 1, 22 (1960); Crampton, Non-statutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich. L.Rev. 387 (1970); Currie, The Federal Courts and The American Law Institute, (Part II), 36 U.Chi.L.Rev. 268, 290 (1969); K. C. Davis, Administrative Law Text § 27.07 at 497 (3d ed.1972). In the face of the “sue and be sued”" }, { "docid": "5355819", "title": "", "text": "Menihan Corp., 312 U.S. 81, 61 S.Ct. 485, 85 L.Ed. 595 (1941); Bor-Son Building Corp. v. Heller, supra; May Dept. Stores Co. v. Williamson, 549 F.2d 1147 (8th Cir. 1977). As we have recently noted, the words “sue and be sued” normally embrace all civil process incident to legal proceedings, including garnishment procedures. See May Dept. Stores Co. v. Williamson, supra. The “sue and be sued” clause covering the Veterans Administration, 38 U.S.C. § 1820(a)(1), as it read at the time this suit was filed, provided: (a) Notwithstanding the provisions of any other law, with respect to matters arising by reason of this chapter, the Administrator may— (1) sue and be sued in the Administrator’s official capacity in any court of competent jurisdiction, State or Federal . At first blush, this “sue and be sued” clause might appear to be a waiver of immunity in regard to garnishment proceedings. One court has so held. See Chicago Housing Authority v. Davis, No. 75 C 2133 (N.D.Ill. Nov. 29, 1975). We are persuaded, however, that the Davis case was incorrectly decided and that the better reasoned view is that expressed in DePaul Community Health Center v. Campbell, 445 F.Supp. 484, No. 77-025 C (4) (E.D.Mo. March 29,1977), a case relied upon by the district courts in the cases currently before us. In Campbell the court noted that this “sue and be sued” clause is expressly limited to “matters arising by reason of this chapter,” and that the chapter referred to is chapter 37, entitled “Home, Condominium, and Mobile Home Loans.” Accordingly, the Campbell court distinguished cases where the “sue and be sued” clause was drafted in general terms, see, e. g., May Dept. Stores Co. v. Williamson, supra, and cases where the “sue and be sued” clause related to statutory provisions dealing with agency employees, see, e. g., Federal Housing Admin, v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940), and held that the waiver of immunity in 38 U.S.C. § 1820(a)(1) did not extend to garnishment proceedings. We conclude that the result reached in Campbell and the cases" }, { "docid": "21472454", "title": "", "text": "sued must be strictly observed and exceptions are not to be implied. Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957). By enacting the FTCA, Congress provided a waiver of sovereign immunity in certain cases. 28 U.S.C. § 1346(b). However, § 2680(b) of the FTCA specifically retains sovereign immunity for tort claims against the United States for “loss, miscarriage, or negligent transmission” of the mails or postal matter. Anderson v. United States Postal Service, 761 F.2d 527, 528 (9th Cir.1985); Insurance Co. of North America v. United States Postal Service, 675 F.2d 756, 758 (5th Cir.1982); see also Sportique Fashions, Inc., 597 F.2d at 665. Notwithstanding this postal restriction of the waiver of sovereign immunity, plaintiff argues that this immunity no longer exists in light of the Postal Reorganization Act of 1970, 39 U.S.C. §§ 101, et seq. The Postal Reorganization Act includes a provision that “[t]he Postal Service shall have [the power] (1) to sue and be sued in its official name — ” 39 U.S.C. § 401(1). Plaintiff contends the Supreme Court’s decision in Franchise Tax Bd. of Cal. v. United States Postal Service, 467 U.S. 512, 104 S.Ct. 2549, 81 L.Ed.2d 446 (1984), and the Seventh Circuit's decision in Azar v. United States Postal Service, 777 F.2d 1265 (7th Cir.1985), establish the proposition that not all services provided by the USPS are protected by § 2680(b) of the FTCA and that the “sue and be sued’’ clause should be construed so as to find an exception to § 2680(b). Upon a consideration of Franchise Tax Bd. and Azar, the Court finds plaintiff’s reliance on these cases is misplaced. Neither Franchise Tax Bd. nor Azar involved a claim of legal liability on the part of the USPS. The issue in each case was the status of the USPS entity itself, but in altogether different contexts. The Franchise Tax Bd. case involved the question of whether the USPS was required to honor a garnishment order against a USPS employee resulting from an unpaid state administrative tax. In that case, four postal employees" }, { "docid": "22863557", "title": "", "text": "that agency is not less amenable to judicial process than a private enterprise under like circumstances would be.” Id., at 245 (footnote omitted). The Court then explained why garnishment orders fell within the scope of the statutory waiver of sovereign immunity: “Clearly the words ‘sue and be sued’ in their normal connotation embrace all civil process incident to the commencement or continuance of legal proceedings. Garnishment and attachment commonly are part and parcel of the process, provided by statute, for the collection of debt. . . . [Hjowever it may be denominated, whether legal or equitable, and whenever it may be available, whether prior to or after final judgment, garnishment is a well-known remedy available to suitors. To say that Congress did not intend to include such civil process in the words 'sue and be sued’ would in general deprive suits of some of their efficacy.” Id., at 245-246 (footnotes and citation omitted). If anything, the waiver of sovereign immunity is broader here than it was in Burr. In passing the Postal Reorganization Act of 1970, 84 Stat. 719, Congress not only indicated that the Postal Service could “sue and be sued,” 39 U. S. C. §401(1), but also that it had the power “to settle and compromise claims by or against it,” §401(8), and that “[t]he provisions of chapter 171 and all other provisions of title 28 relating to tort claims shall apply to tort claims arising out of activities of the Postal Service.” § 409(c). Neither of these provisions would have been necessary had Congress intended to preserve sovereign immunity with respect to the Postal Service. Congress also indicated that it wished the Postal Service to be run more like a business than had its predecessor, the Post Office Department. Here, the Board has employed the same “well-known” remedy that was held to be within the scope of a sue-and-be-sued clause in Burr. Moreover, as was true of the agency involved in Burr, Congress has “launched [the Postal Service] into the commercial world”; hence under Burr not only must we liberally construe the sue-and-be-sued clause, but also we" }, { "docid": "16746975", "title": "", "text": "held that a clear waiver found in one statute cannot be given effect in a case arising under another statute. Section 401(1) of Title 39 provides: The Postal Service shall have the following general powers: (1) to sue and be sued in its official name____ In Federal Housing Administration v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940), the Supreme Court held that a “sue-and-be-sued” clause rendered the FHA subject to state garnishment proceedings. The Court said, [W]e start from the premise that such waivers by Congress of governmental immunity in case of such federal instrumentalities should be liberally construed ____ Hence, when Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to “sue and be sued,” it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general authority to “sue and be sued” is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the “sue and be sued.” clause in a narrow sense. In the absence of such showing, it must be presumed that when Congress launched a governmental agency into the commercial world and endowed it with authority to “sue or be sued,” that agency is not less amenable to judicial process than a private enterprise under like circumstances would be. Clearly the words “sue and be sued” in their normal connotation embrace all civil process incident to the commencement or continuance of legal proceedings. Id. at 245, 60 S.Ct. at 490 (footnote omitted). See also Kosak v. United States, — U.S. -, - n. 9, 104 S.Ct. 1519, 1523 n. 9, 79 L.Ed.2d 860 (1984) (“ ‘The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to" }, { "docid": "17249811", "title": "", "text": "§§ 401(3)-(9). Under the reorganization, the USPS was granted broad powers regarding employment and transportation matters. 39 U.S.C. §§ 1001 et seq. and § 5001 et seq. By the creation of a special Postal Service Fund, a revolving fund in the Treasury of the United States, and the broad grant of financing powers, the Congress put the USPS on an independent financial basis, with only transitionary appropriations to be under the annual budget of the United States. The USPS was to exercise and “to have all other powers incidental, necessary, or appropriate to the carrying on of its functions or the exercise of its specific powers.” 39 U.S.C. § 401(10). Altogether, these powers emphasize the autonomy that the USPS was to enjoy. II. It appears to us that Congress has not only continued the “emphatic practice” mentioned in Keifer of disallowing governmental immunity for federal agencies, but in the case of USPS has made it even less hospitable. In addition to the power to sue and be sued, Congress has assigned a superabundance of power to USPS in making it an “independent establishment,” operating in a “business-like” way to make the delivery of the mail “a self-supporting enterprise.” Congress knows well enough how to draw such statutes. In addition to the forty cited in Keifer, supra, 306 U.S. at 390-91, n. 3, 59 S.Ct. 516, there have been five statutes of that type enacted: 15 U.S.C. § 634(b)(1); 38 U.S.C. § 1820(a)(1); 12 U.S.C. § 181(a); 12 U.S.C. § 341; 20 U.S.C. § 1132C-2(b)(2); 35 U.S.C. § 1154. Moreover, in the Act here, the Congress specifically restricted the consent to suit in two respects only: (1) the applicability of the Federal Tort Claims Act and (2) procedural matters relating to suits against the United States. 39 U.S.C. § 409. These specific and isolated limitations indicate beyond doubt that the waiver to sue and be sued applied to all other litigation. See KSK Jewelry Co. v. Chicago Sheraton Corp., 283 F.2d 8, 11 (7th Cir. 1960); White v. Bloomberg, 501 F.2d 1379, 1386 (4th Cir. 1974); Sutherland, Statutory Construction § 47.23." }, { "docid": "22957358", "title": "", "text": "v. Califano, 609 F.2d 1265, 1267-68 (7th Cir. 1979). VI. Our decision that equitable estoppel may be available against the government in the instant case is also supported by the somewhat unique, quasi-private status of the United States Postal Service. In enacting the Postal Reorganization Act of 1970, Congress intended to “[c]onvert the Post Office Department into an independent establishment within the Executive Branch of the Government,” unencumbered by direct political pressure and capable of delivering the mail in an efficient and “business like” manner. H.R.Rep.No.1104, 91st Cong., 2d Sess. 1104, reprinted in [1970] U.S.Code Cong. & Ad.News 3649, 3650 (emphasis added). To effectuate this goal, Congress clothed the Service with broad and extensive powers, including the ability “to sue and be sued in its official name,” 39 U.S.C. § 401(1), the power “to enter into and perform contracts, execute instruments, and determine the character of, and necessity for, its expenditures,” 39 U.S.C. § 401(1), and the authority to “settle and compromise claims by or against it.” 39 U.S.C. § 401(3). Moreover, except as specifically provided for in the Reorganization Act itself, Congress exempted the Postal Service from all “Federal law[s] dealing with public or federal contracts, property, works, officers, employees, budgets or funds.” 39 U.S.C. § 410 (1976). See H.R.Rep.No.1104, 91st Cong., 2d Sess., reprinted in [1970] U.S.Code Cong. & Ad.News 3649, 3674. In addition, by establishing a special self-sustaining Postal Service Fund within the Treasury Department, and by entrusting the Service with broad financing powers, Congress meant to put the Postal Service on an independent financial basis, requiring only transitional appropriations through the Congressional budgetary process. See Standard Oil Div., American Oil Co. v. Starks, 528 F.2d 201, 203 (7th Cir. 1975); 39 U.S.C. §§ 2003-2009 (1976). In light of these considerations, virtually all courts that have considered the question have concluded that the Postal Service is not immune, as is the federal government generally, from commercial or judicial garnishment proceedings. See, e.g., Standard Oil Div., American Oil Co. v. Starks, 528 F.2d 201 (7th Cir. 1975); Beneficial Finance Co. v. Dallas, 571 F.2d 125 (2d Cir. 1978);" }, { "docid": "2793297", "title": "", "text": "recognized. The Postal Service is unlike many other federal agencies authorized to “sue and be sued”. It discharges a purely governmental function — delivery of the mails. While it also delivers packages in competition with private companies, its major function is exclusively governmental. However, this does not, of itself, remove the Postal Service from the ambit of the Burr decision. See White v. Bloomberg, 4 Cir. 1974, 501 F.2d 1379, 1386. The Court said in Burr that an exception to the broad language authorizing a federal agency to “sue and be sued” can be implied only upon a showing that “it was plainly the purpose of Congress to use the ‘sue and be sued’ clause in a narrow sense.” 60 S.Ct. at 490. Such a restrictive purpose can be deduced if subjecting the Postal Service to garnishment would lead to a “grave interference with the performance of a governmental function.” Id. The Government urges that this would result from allowing garnishment, but it offers no evidence that this would occur. Some district courts have agreed with the Postal Service’s position, presumably as a matter of law and of judicial deduction from known facts. See, e. g., Commerce Bank v. Fugate, CA 20470-2, D.Mo. Feb. 27, 1973; Detroit Window Cleaners v. Griffin, E.D.Mich. 1972, 345 F.Supp. 1343. But that conclusion is not self-evident. One of the major purposes of the reorganization of the Postal Service was to make it more self-sufficient, more like a business service. U.S.Code Cong. & Admin.News 1970, pp. 3654, 3660, 3665. It may make contracts, borrow money, pledge its assets, buy or sell land. 39 U.S.C.A. §§ 401(3) — (5), 2005(a), (b). Its employees may bargain collectively. 39 U.S.C.A. §§ 1201-08. To say that the Postal Service carries on a governmental function and therefore is immune to garnishment ignores the language of Burr and the sweep of the Postal Service statute. Some interference with the performance of a governmental functional ways results when an agency is sued. Nevertheless, the Fourth Circuit has held that the Postal Service, unlike the federal government, may be charged post-judgment interest. White" }, { "docid": "3848230", "title": "", "text": "STEPHENSON, Circuit Judge. These appeals challenge the immunity of the United States Postal Service (USPS) to garnishment procedures to effect judgments in state courts. In both cases the USPS filed a motion to quash summons to garnishee. On July 2, 1976, the district court sustained the motions of USPS, thereby holding that the USPS was immune to garnishment procedures to effect judgments in state courts. We reverse. When Congress created the USPS, it gave the Postal Service the authority to sue and be sued in its official name. 39 U.S.C. § 401(1). The words “sue and be sued” in their normal connotation embrace all civil process incident to legal proceedings, including garnishment procedures. R.F.C. v. Menihan Corp., 312 U.S. 81, 85, 61 S.Ct. 485, 85 L.Ed. 595 (1941); FHA v. Burr, 309 U.S. 242, 245-46, 60 S.Ct. 488, 84 L.Ed. 724 (1940). We must determine whether .Congress has intended to include garnishment procedures within the scope of USPS’ authorization to “sue and be sued.” In Keifer & Keifer v. R.F.C., 306 U.S. 381, 388, 59 S.Ct. 516, 83 L.Ed. 784 (1939), the Court noted that “the government does not become the conduit of its immunity in suits against its agents or instrumentalities merely because they do its work.” (citations omitted.) In FHA v. Burr, supra, the Court grappled with the question of whether the Federal Housing Administration was subject to garnishment for monies due to an employee. After noting that waivers by Congress of governmental immunity for federal instrumentalities should be liberally construed, Mr. Justice Douglas stated the following: [W]hen Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to “sue and be sued”, it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general authority to “sue and be sued” is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with" }, { "docid": "2793298", "title": "", "text": "with the Postal Service’s position, presumably as a matter of law and of judicial deduction from known facts. See, e. g., Commerce Bank v. Fugate, CA 20470-2, D.Mo. Feb. 27, 1973; Detroit Window Cleaners v. Griffin, E.D.Mich. 1972, 345 F.Supp. 1343. But that conclusion is not self-evident. One of the major purposes of the reorganization of the Postal Service was to make it more self-sufficient, more like a business service. U.S.Code Cong. & Admin.News 1970, pp. 3654, 3660, 3665. It may make contracts, borrow money, pledge its assets, buy or sell land. 39 U.S.C.A. §§ 401(3) — (5), 2005(a), (b). Its employees may bargain collectively. 39 U.S.C.A. §§ 1201-08. To say that the Postal Service carries on a governmental function and therefore is immune to garnishment ignores the language of Burr and the sweep of the Postal Service statute. Some interference with the performance of a governmental functional ways results when an agency is sued. Nevertheless, the Fourth Circuit has held that the Postal Service, unlike the federal government, may be charged post-judgment interest. White v. Bloomberg, 1974, 501 F.2d 1379. The court concluded that “in creating the Postal Service, Congress used the phrase ‘sue and be sued’ in its normal sense.” Id. at 1386. The Tenth Circuit found that the Postal Service “is just as amenable to the judicial process as is a private enterprise.” Kennedy Electric Co. v. United States Postal Service, 1974, 508 F.2d 954, 960. The institution of garnishment proceedings does not appear per se to impose a substantially greater burden. As Justice Douglas said in Burr, 60 S.Ct. at 492, the fact that liability to various legal proceedings may “appreciably impede” the governmental function is a policy consideration that Congress presumably dealt with in passing the Act. Unless the kind of suit at issue presents a “grave,” as opposed to “appreciable,” interference with the operations of the Postal Service, it is as subject to garnishment as any other entity that has the capacity to be sued. The court is not prepared to conclude that garnishment presents a serious threat to the delivery of the mails" }, { "docid": "3335900", "title": "", "text": "by implied exceptions, it must be clearly shown that certain types of suit are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the “sue and be sued” clause in a narrow sense. Id. at 245, 60 S.Ct. at 490. In that case, the FHA argued that the “sue and be sued” clause related only to cases concerning the Administrator’s own duties. The Court stated that since title I was concerned with FHA employment, the garnishment of an employee’s wages fell within the Administrator’s duties under title I. Plaintiff cites the Court to May Department Stores Company v. Williamson, 549 F.2d 1147 (8th Cir. 1977) in which the court held that the United States Postal Service was subject to garnishment. The statute in question therein, 39 U.S.C. § 401, provides in part: The Postal Service shall have the following general powers: (1) to sue and be sued in its official name; . There is clearly no restriction placed upon the “sue or be sued” clause. In connection with the Veterans Administration, however, the relevant statute, 38 U.S.C. § 1820, provides: (a) Notwithstanding the provisions of any other law, with respect to matters arising by reason of this chapter, the Administrator may— (1) sue and be sued in his official capacity in any court of competent jurisdiction, State or Federal; . . . . [emphasis added] The chapter referred to is chapter 37 entitled “Home, Condominium, and Mobile Home Loans”. The chapter which concerns employees of the Veterans Administration is chapter 3. In Chicago Housing Authority v. Brownie Lee Davis, et a/., No. 75 C 2133 (E.D.Ill. November 20, 1975), the court held that the Veterans Administration was subject to garnishment under the same circumstances as exist herein. The court, however, did not consider the language in § 1820 limiting the “sue and be sued” clause to only those matters arising under chapter 37. Accordingly, this Court" }, { "docid": "16746972", "title": "", "text": "in familiar form and consents to suit, it is subject to incidents of suits in insurance business); cf. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) (no recovery of attorneys’ fees against United States because no waiver of immunity); NAACP v. Civiletti, 609 F.2d 514, 518 (D.C.Cir.1979), cert, denied, 447 U.S. 922, 100 S.Ct. 3012, 65 L.Ed.2d 1114 (1980) (no recovery of attorneys’ fees against United States because no waiver of immunity). We do not have to choose between the two alternative approaches because we do not believe Congress either expressly or impliedly has authorized interest in a Title VII action against a governmental entity. . Cross relies on the only decision allowing prejudgment interest against the USPS—Milner v. Bolger, 546 F.Supp. 375 (E.D.Cal.1982). The Milner court analyzed the scope of the \"sue and be sued\" clause in the USPS enabling act under the rubric of FHA v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940). In Burr, the Supreme Court held that a “sue and be sued clause\" in the National Housing Act made the Federal Housing Administration subject to garnishment for moneys due to an employee. In so holding the Court remarked that \"clearly the words 'sue and be sued' in their normal connotation embrace all civil process incident to the commencement or continuance of legal proceedings.\" Id. at 245, 60 S.Ct. at 490. Unlike the district court in Milner, we believe the controlling statute is Title VII. Burr and the line of cases following it are thus inapposite to the issue in this case. We disagree with the Milner court's method of analysis, and we decline to adopt either its reasoning or its conclusion. ARNOLD, Circuit Judge, dissenting. The Court’s analysis is founded on the assumption that because the plaintiff’s cause of action arose under Title VII, any waiver of sovereign immunity with respect to prejudgment interest must be found in Title VII rather than in the Postal Reorganization Act of 1970, 39 U.S.C. § 401(1). Neither of the cases cited for this novel proposition" }, { "docid": "16746977", "title": "", "text": "add to its rigor by refinement of construction where consent has been announced.’ ”) (quoting Anderson v. Hayes Constr. Co., 243 N.Y. 140, 147, 153 N.E. 28, 29-30 (1926) (Cardozo, J.)). In May Department Stores Co. v. Williamson, 549 F.2d 1147, 1148 (8th Cir.1977), we followed Burr and held that, in enacting § 401(1), Congress waived the Postal Service’s immunity from state garnishment proceedings. Thus, the cases relied upon by the Court today for the general proposition that prejudgment interest is not available in Title YII actions against the government are not in point, because none of those cases involved a Title VII suit against an agency empowered to “sue and be sued.” Accord, White v. Bloomberg, 501 F.2d 1379, 1385-86 (4th Cir.1974) (holding Postal Service subject to award of postjudgment interest in suit brought under the Back Pay Act); see also Richerson v. Jones, 551 F.2d 918, 925-26 n. 11 (3d Cir.1977). The question here is not whether “Congress has ... expressed an affirmative in tention to allow interest.” Ante at 1329 (footnote omitted). Rather, it is whether Congress has expressed an affirmative intention to restrict the Postal Service’s general amenability to suit and all the normal incidents thereof so as to bar awards of prejudgment interest. The Court makes much of the fact that, in enacting the Postal Reorganization Act, Congress did not extend the provisions of Title VII, then inapplicable to federal employees, to postal employees. From this, the Court concludes that Congress intended that postal employees be treated the same as all other federal employees with regard to nondiscrimination laws. I do not believe that this inference is compelled. First, “[i]n addition to the power to sue and be sued, Congress has assigned a superabundance of power to USPS in making it an ‘independent establishment,’ operating in a ‘business-like’ way to make delivery of the mail ‘a self-supporting enterprise.’ ” Standard Oil Division, American Oil Co. v. Starks, 528 F.2d 201, 203 (7th Cir.1975) (per curiam). For example, the Service was given a broad range of typical corporate powers, including the power to make and perform" } ]

[ { "docid": "19078525", "title": "", "text": "521(2). The bankruptcy court held that even without a reaffirmation agreement, the law allowed Parker to keep the car and continue to make his monthly payments. The court reasoned that the reaffirmation agreement therefore was not in Parker’s best interest under § 524(c)(6). On appeal, the Credit Union argues that because Parker could not simply keep his car and continue payment without a reaffirmation agreement such as the one the bankruptcy court refused to approve, the court erred in denying approval. We review the bankruptcy court’s interpretation of the statute de novo. Grey v. Federated Group, Inc. (In re Federated Group, Inc.), 107 F.3d 730, 732 (9th Cir.1997). In this case, if the court’s interpretation of the statute was correct, it clearly was within the bankruptcy court’s discretion to deny approval of the reaffirmation agreement as not in Parker’s best interest. Our decision therefore depends on whether the court was correct in concluding that, absent the agreement, Parker could retain the automobile as long as he continued to make the monthly payments, even though any deficiency debt was discharged. 11 U.S.C. § 521(2)(A) states that after filing a Chapter 7 petition, a debtor who has consumer debts secured by property of the estate shall file a statement of his intention to retain or surrender the property with the clerk and, “if applicable,” specify that the debtor claims the property as exempt, plans to redeem the property, or intends to reaffirm the debts. The debtor must perform his expressed intention within 45 days. Id. § 521(2)(B). The circuits are evenly split on whether reaffirmation or redemption of nonexempt property are the debtor’s only alternatives, or whether following a Chapter 7 filing, a debtor may simply hold on to the collateral securing the loan and continue making payments, without electing whether to redeem the property or reaffirm the debt. The Second, Fourth, and Tenth circuits have held that debtors who are current on their loan payments on secured property may elect to retain the property and make the payments specified in the contracts with the creditor. In re Boodrow, 126 F.3d at" } ]

[ { "docid": "15959092", "title": "", "text": "for exercising subject matter jurisdiction. Rather, it aids the bankruptcy court in its exercise of already-existing subject matter jurisdiction. See In re Combustion Eng’g, Inc., 391 F.3d 190, 224, 225 (3d Cir.2004) (“§ 105 does not provide an independent source of federal subject matter jurisdiction”). There appearing to be no independent basis for exercising subject matter jurisdiction with respect to the claims the Debtor has asserted, § 105 is of no aid to her. III. CONCLUSION Accordingly, I concluded that this court lacks subject matter jurisdiction over the claim raised in the Debtor’s Second Emergency Motion. An appropriate Order shall be entered dismissing the Debtor’s Second Emergency Motion for lack of subject matter jurisdiction. . The Debtor does not dispute that Wells Fargo has a security interest in the Vehicle. However, due to what I presume to be an oversight, she did not disclose Wells Fargo as a secured creditor her bankruptcy schedules. She checked the box for “None” on Schedule D (Creditors Holding Secured Claims). See Docket Entry No. 5, Schedule D. Additionally, on her Statement of Intention, which asks whether she has secured property that she intends to surrender, claim as exempt, redeem or reaffirm, she listed \"None.” See Docket Entry No. 9. The Debtor did disclose her monthly payment of $280.00 for the Vehicle on Schedule J. See Docket Entry No. 5, Schedule J. . Under the Bankruptcy Code, a \"reaffirmation agreement” is an agreement that provides that, notwithstanding the debtor’s discharge, the debtor will remain legally obligated to repay part or all of his or her debt to the creditor. See, e.g., 11 U.S.C. § 524(c); In re Eiler, 390 B.R. 920, 924 (Bankr.E.D.Wis.2008) (\"[A] reaffirmation agreement has the effect of reaffirming the debtor’s preexisting in personam liability on the underlying obligations giving rise to the debt.”) (citation and internal emphasis omitted). A \"valid reaffirmation agreement thus allows a favored creditor to collect the amount reaffirmed as a personal liability without violating section 524(a)’s discharge injunction.” Id. . The statutory authority for creating valid, binding reaffirmation agreements is codified at 11 U.S.C. § 524(c). That section" }, { "docid": "9826939", "title": "", "text": "that relegating a discharged bankrupt to other courts for vindication of his discharge resulted so often in the loss of its intended benefit and frustration of the objective of the federal legislation that jurisdiction of determining the effect of a discharge was given to the bankruptcy court. Report of the Commission on the Bankruptcy Laws of the United States, H.R. Doc. No. 137, 93d Cong., 1st Sess. (1973), quoted in H.R. Rep. No. 95-595 at 46-47 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6008. For these reasons we cannot say that Congress intended to create a private right of action under § 524, and we shall not .imply one. IV Walls contends that, contrary to what the district court held, the Bankruptcy Code does not preclude a simultaneous claim under the FDCPA. She calls upon us to read the two competing statutes jointly, as the Supreme Court urged courts to do whenever possible in Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984). In her view, Wells Fargo engaged in unfair and unconscionable collection practices, which are forbidden by the FDCPA, by trying to collect her debt in violation of the discharge injunction. This, she maintains, is outside of the bankruptcy proceeding because the bankruptcy is over and done with, while the FDCPA (whose purpose is to prevent bankruptcy) is still needed to protect a debtor who has been discharged. There is no escaping that Walls’s FDCPA claim is based on an alleged violation of § 524. As the district court noted, this necessarily entails bankruptcy-laden determinations. Were her payments “voluntary” under § 524(f)? Was she required to enter into a reaffirmation agreement pursuant to § 524(c)? How much of a free ride did her “ride through” under Parker afford? The Bankruptcy Code provides its own remedy for violating § 524, civil contempt under § 105. To permit a simultaneous claim under the FDCPA would allow through the back door what Walls cannot accomplish through the front door — a private right of action. This would circumvent the remedial scheme of the Code under which Congress" }, { "docid": "2854148", "title": "", "text": "on the first issue, the Ninth and Seventh Circuits have had the opportunity to do so. In Randolph v. IMBS, Inc., a collection agency contacted the debtor in violation of the discharge injunction after payments on the debtor’s confirmed bankruptcy plan began. The debtor then brought suit under the FDCPA. The Seventh Circuit allowed the FDCPA claim, explaining that “overlapping and not entirely congruent remedial systems can coexist.” In contrast, the Ninth Circuit in Walls v. Wells Fargo Bank, N.A., considering allegations that the discharge injunction had been violated when Wells Fargo continued to solicit and collect monthly mortgage payments after debtor’s discharge, held that a debtor could not maintain simultaneous actions under both the Bankruptcy Code and the FDCPA because to do so would “circumvent the remedial scheme of the [Bankruptcy] Code ... ”. The court in Walls went on to state that “[w]hile the FDCPA’s purpose is to avoid bankruptcy, if bankruptcy nevertheless occurs, the debtor’s protection and remedy remain under the Bankruptcy Code.” Analysis In the Rogers’ adversary complaint, they allege that B-Real’s action of filing proofs of claim on three time-barred debts violated 15 U.S.C. § 1692d, 15 U.S.C. § 1692e, and 15 U.S.C. § 1692f In opposition, B-Real argues that the filing of a proof of claim, even on an invalid debt, cannot potentially constitute a violation of the FDCPA; instead, B-Real asserts, the debtors’ sole remedy lies within the Bankruptcy Code and its procedures for objecting to a filed claim. B-Real asserts that the “FDCPA and the Bankruptcy Code are not compatible in the area of filing a proof of claim, and therefore the Bankruptcy Code should govern the claims process.” B-Real notes that a “claim” is defined broadly in the Bankruptcy Code as a “right to payment, whether or not such right is ... disputed ...” B-Real asserts that under the Bankruptcy Code, any creditor may file a proof of claim and that it is the debtor’s right to object to such claims under 11 U.S.C. § 502(b). If the debtor is successful in his objection, the claim will be disallowed. B-Real further" }, { "docid": "9826922", "title": "", "text": "RYMER, Circuit Judge: We are asked to imply a private right of action for a debtor discharged from bankruptcy to enforce an alleged violation of 11 U.S.C. § 524, which provides that discharge under Title 11 of the Bankruptcy Code operates as an injunction against collecting debt as a personal liability of the debtor. Donna Marie Walls brought a class action on behalf of Chapter 7 bankruptcy debtors against Wells Fargo Bank for (among other things) violating the discharge injunction by attempting to collect her debt after it had been discharged. The district court concluded that the remedy Congress intended for violations of the discharge injunction is contempt pursuant to 11 U.S.C. § 105(a). Walls v. Wells Fargo Bank, N.A., 255 B.R. 38 (E.D.Cal.2000). Accordingly, it referred Walls’s claims for contempt to the bankruptcy court but dismissed her claims for relief under § 524. We agree, and hold that a private cause of action is not available under § 524, or through § 105. This appeal also raises the issue whether a discharged debtor may pursue a simultaneous claim under the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692f. We think not, as to do so would circumvent the Bankruptcy Code’s remedial scheme. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm. I Walls filed a voluntary bankruptcy petition under Chapter 7 of Title 11 of the United States Code on September 24, 1997. She listed a pre-petition obligation of $118,000 owed to Wells Fargo Bank, secured by her house. She continued to make payments, before and after her debt was discharged on January 2, 1998. This enabled Walls to keep the house under a “ride-through” allowed by In re Parker, 139 F.3d 668, 672-73 (9th Cir.1998), to debtors who are current on their loan payments on secured property and who continue to make payments. Parker permits such debtors to avoid making a statutory election whether to redeem the property or reaffirm the debt pursuant to § 524(c). This meant that Wells Fargo retained its lien on the property and could foreclose in the event that" }, { "docid": "16971409", "title": "", "text": "to collect debts that are not owed by her, by filing claims against her in bankruptcy, violates 15 U.S.C. § 1692f. Section 1692f prohibits a debt collector from using “unfair or unconscionable means to collect or attempt to collect any debt.” The statute contains a nonexclusive list of actions that violate the section, of which the most apropos to this action is subsection (1), which prohibits the collection of “any amount ... unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” The undisputed fact in this case is that neither of the debts reflected in the proofs of claim filed by Defendant are debts of Plaintiff, not because those debts are subject to some defense, such as the statute of limitations , but because Defendant has simply named the wrong debtor. The debts alleged are not and have never been debts of Plaintiff. Defendant relies on Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir.2002), which held that the debtor’s action under the FDCPA against a creditor for its attempts to collect a discharged debt in violation of Section 524(a)(the discharge injunction) was subject to dismissal because it “would circumvent the Bankruptcy Code’s remedial scheme.” Id. at 504. The court in Walls, however, did not consider the doctrine of preemption in resolving the case, because as correctly pointed out by the Seventh Circuit Court of Appeals in a case with nearly identical facts, one federal statute does not preempt another. See Randolph v. IMBS, Inc., 368 F.3d 726, 729 (7th Cir.2004), citing Baker v. IBP, Inc., 357 F.3d 685, 688 (7th Cir.2004). Instead, when two federal statutes address the same subject in a different way, the court must determine whether one statute implicitly repeals the other. Id. at 730; Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003). In Walls, the Ninth Circuit Court of Appeals correctly concluded that because the discharge injunction of Section 524(a) is a creation of the Bankruptcy Code specifically enacted to protect discharged debtors from post-discharge collection efforts by creditors whose" }, { "docid": "19767942", "title": "", "text": "the application of the FDCPA under these facts. In Walls, a chapter 7 debtor continued to make payments to the creditor holding the mortgage on her house after receiving a discharge in her bankruptcy case to enable her to keep the home under the so-called “ride-through” doctrine. Walls, 276 F.3d at 505 (citing In re Parker, 139 F.3d 668, 672-73 (9th Cir.1998)). When the debtor later stopped making payments, the creditor foreclosed. The debtor responded by commencing a class action in federal district court on behalf of chapter 7 debtors to recover damages, alleging, among other theories, that the creditor had violated FDCPA in attempting to collect a debt after it had been discharged in the debt- or’s bankruptcy case. The district court dismissed this claim, and the debtor appealed. On appeal, the Ninth Circuit affirmed the dismissal, deciding that the debtor’s FDCPA claim based upon the creditor’s alleged violation of the § 524 discharge was precluded by the Code. The court began its analysis by noting that “[t]here is no escaping that Wall’s FDCPA claim is based on an alleged violation of § 524.” Id. at 510. Therefore, the court explained, in order to adjudicate the debtor’s FDCPA claim, the district court would have been required to engage in a series of “bankruptcy-laden” determinations: whether the debtor’s payments to the creditor had been voluntary under § 524(f); whether the creditor was required to enter into a reaffirmation agreement with the debtor pursuant to § 524(c) in order to accept the payments; and whether the so-called “ride-through” precluded the creditor from engaging in foreclosing. Id. These bankruptcy issues were, according to the court, unrelated to FDCPA. In light of this, the court reasoned: The Bankruptcy Code provides its own remedy for violating § 524, civil contempt under § 105. To permit a simultaneous claim under the FDCPA would allow through the back door what Walls cannot accomplish through the front door — a private right of action. This would circumvent the remedial scheme of the Code under which Congress struck a balance between the interests of debtors and creditors by" }, { "docid": "1953187", "title": "", "text": "that any agreement whose consideration is based in whole or in part on a discharged debt is only enforceable if it complies with § 524. Lopez, 274 B.R. at 860. The $3030.35 question in this case is even though the agreement is not a valid reaffirmation agreement under § 524, is it nevertheless a valid contract? A. The Bankruptcy Court Did Not Err in Granting Declaratory Relief to the Lopezes. The validity of the contract is the central claim of both parties. The bankruptcy court did not abuse its discretion in construing the pleadings to obtain substantial justice. Fed.R.Civ.P. 8(f). The Lopezes had standing to seek relief from the bankruptcy court through a contempt proceeding. Walls v. Wells Fargo Bank N. A., 276 F.3d 502, 507 (9th Cir.2002). Finally, BRM consented to trying the issue of the validity of the agreement as construed by the bankruptcy court. Fed.R.Civ.P. 15(b); see also Consolidated Data Terminals v. Applied Digital Data Sys., 708 F.2d 385, 396 (9th Cir.1983). B. The Contract Is An Invalid Reaffirmation Agreement. 1. Parker Applies And Is Binding Precedent. BRM posits that this post-discharge freedom of contract issue could be avoided if this court were to reverse this circuit’s prior decision, In re Parker. BRM claims that Parker misconstrues Bankruptcy Code § 521(2) by permitting debtors to retain the collateral and keep current their payments pursuant to the original contract. In Parker, this court considered whether a bankruptcy court erred in refusing to approve an affirmation agreement between an unrepresented debtor and a credit union concerning a secured debt on his automobile. 139 F.3d at 670. The court considered a debtor’s options under § 521(2) of the Bankruptcy Code. Id. at 672. Section 521(2)(A) states that after filing a Chapter 7 petition, a debtor with consumer debts secured by property of the estate shall file a statement of its intention to retain or surrender the property, and “if applicable,” specify whether the debtor claims the property as exempt, plans to redeem the property, or intends to reaffirm the debt. Id. The court held that a debtor could retain the" }, { "docid": "9826940", "title": "", "text": "and unconscionable collection practices, which are forbidden by the FDCPA, by trying to collect her debt in violation of the discharge injunction. This, she maintains, is outside of the bankruptcy proceeding because the bankruptcy is over and done with, while the FDCPA (whose purpose is to prevent bankruptcy) is still needed to protect a debtor who has been discharged. There is no escaping that Walls’s FDCPA claim is based on an alleged violation of § 524. As the district court noted, this necessarily entails bankruptcy-laden determinations. Were her payments “voluntary” under § 524(f)? Was she required to enter into a reaffirmation agreement pursuant to § 524(c)? How much of a free ride did her “ride through” under Parker afford? The Bankruptcy Code provides its own remedy for violating § 524, civil contempt under § 105. To permit a simultaneous claim under the FDCPA would allow through the back door what Walls cannot accomplish through the front door — a private right of action. This would circumvent the remedial scheme of the Code under which Congress struck a balance between the interests of debtors and creditors by permitting (and limiting) debtors’ remedies for violating the discharge injunction to contempt. “[A] mere browse through the complex, detailed, and comprehensive provisions of the lengthy Bankruptcy Code ... demonstrates Congress’s intent to create a whole system under federal control which is designed to bring together and adjust all of the rights and duties of creditors and embarrassed debtors alike.” MSR Exploration, 74 F.3d at 914 (state law malicious prosecution claim based on bankruptcy filings preempted). Nothing in either Act persuades us that Congress intended to allow debtors to bypass the Code’s remedial scheme when it enacted the FDCPA. While the FDCPA’s purpose is to avoid bankruptcy, if bankruptcy nevertheless occurs, the debtor’s protection and remedy remain under the Bankruptcy Code. See Kokoszka v. Belford, 417 U.S. 642,’ 651, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974). Because Walls’s remedy for violation of § 524 no matter how cast lies in the Bankruptcy Code, her simultaneous FDCPA claim is precluded. V To the extent that Walls" }, { "docid": "17077160", "title": "", "text": "OPINION IKUTA, Circuit Judge: John and Carol Schlegel appeal the dismissal of their action seeking relief under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p (2006), and the Equal Credit Opportunity Act (ECOA), 15 U.S.C. §§ 1691 — 1691f (2006). We affirm the district court’s dismissal of the Schlegels’ FDCPA claim, because their complaint did not plausibly allege that Wells Fargo was a “debt collector” for purposes of the Act. We reverse, however, the court’s dismissal of the Schlegels’ claim that Wells Fargo, in violation of ECOA, failed to give them notice within thirty days after taking an adverse action. I In January 2009, John and Carol Robin Schlegel obtained a $157,605 loan from NTFN, Inc., secured by their Las Cruces, New Mexico home. They subsequently fell behind on their mortgage payments, and in March 2010, filed a petition in bankruptcy. As part of the bankruptcy process, they reaffirmed the loan pursuant to 11 U.S.C. § 524. The loan and deed of trust were assigned to Wells Fargo. On March 27, 2010, Wells Fargo proposed a loan modification agreement that retained the same interest rate but extended the maturity date of the loan from February 2039 to April 2050. The bankruptcy court approved the loan modification agreement, which became effective on July 1, 2010, with payments to begin on August 1, 2010. The Schlegels received a discharge in bankruptcy on July 9, 2010. On July 19, 2010, Wells Fargo sent the Schlegels a default notice indicating that the Schlegels’ loan was “in default for failure to make payments due,” and stating that, unless the Schlegels became current on their loan payments by August 18, 2010, it would “become necessary to require immediate payment in full (also called acceleration) of [their] Mortgage Note and pursue the remedies provided for in [their] Mortgage or Deed of Trust, which include foreclosure.” The Schlegels contacted Wells Fargo, which “told them not to worry, to sit tight and to proceed with the loan modification.” Beginning August 1, 2010, the Schlegels made the monthly payments required under the modification agreement. Notwithstanding its assurances," }, { "docid": "19767943", "title": "", "text": "claim is based on an alleged violation of § 524.” Id. at 510. Therefore, the court explained, in order to adjudicate the debtor’s FDCPA claim, the district court would have been required to engage in a series of “bankruptcy-laden” determinations: whether the debtor’s payments to the creditor had been voluntary under § 524(f); whether the creditor was required to enter into a reaffirmation agreement with the debtor pursuant to § 524(c) in order to accept the payments; and whether the so-called “ride-through” precluded the creditor from engaging in foreclosing. Id. These bankruptcy issues were, according to the court, unrelated to FDCPA. In light of this, the court reasoned: The Bankruptcy Code provides its own remedy for violating § 524, civil contempt under § 105. To permit a simultaneous claim under the FDCPA would allow through the back door what Walls cannot accomplish through the front door — a private right of action. This would circumvent the remedial scheme of the Code under which Congress struck a balance between the interests of debtors and creditors by permitting (and limiting) debtor’s remedies for violating the discharge injunction to contempt. “[A] mere browse through the complex, detailed, and comprehensive provisions of the lengthy Bankruptcy Code ... demonstrates Congress’s intent to create a whole system under federal control which is designed to bring together and adjust all the rights and duties of creditors and embarrassed debtors alike.” MSR Exploration, 74 F.3d at 914.... Nothing in either Act persuades us that Congress intended to allow debtors to bypass the Code’s remedial scheme when it enacted the FDCPA. While the FDCPA’s purpose is to avoid bankruptcy, if bankruptcy nevertheless occurs, the debtor’s protection and remedy remain under the Bankruptcy Code. See Kokoszka v. Belford, 417 U.S. 642, 651, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974). Walls, 276 F.3d at 510. In its decision, while discussing Walls, the bankruptcy court noted several differences in the facts. Here, (1) Debtor was not trying to bypass remedies under the Code; (2) Debtor had already exercised her remedy of objecting to the claim; (3) unlike in Walls where the debtor’s" }, { "docid": "8642281", "title": "", "text": "MEMORANDUM AND ORDER DAMRELL, District Judge. This matter is before the court on (1) defendant Wells Fargo Bank’s motion to dismiss eight of the ten causes of action alleged in plaintiffs complaint for failure to state a claim, and (2) plaintiff Donna M. Wall’s motion to refer the core bankruptcy issues contained in complaint to the United States Bankruptcy Court for the Eastern District of California and to stay the remaining issues in this court pending a decision by the bankruptcy court on the referred claims. BACKGROUND On September 24, 1997, plaintiff Donna Walls filed a voluntary bankruptcy petition under Chapter 7 of Title 11 of the United States Code. In her petition, plaintiff listed a pre-petition obligation of $118,000 (“the debt”) to defendant Wells Fargo Bank. Plaintiffs bankruptcy was discharged on January 2, 1998 and closed on January 26,1998. Plaintiff contends that defendant unlawfully attempted to collect the debt after she filed her Chapter 7 petition in violation of the automatic stay, 11 U.S.C. § 362, and after the debt had been discharged, in violation of the reaffirmation provisions and discharge injunction, 11 U.S.C. § 524(c), (a)(2). Plaintiff alleges that pursuant to defendant’s unlawful collection efforts, she paid over $5,500 to defendant after she filed her bankruptcy petition and after her debt had been discharged. Plaintiffs complaint consists of ten counts: Count 1: wilful violation of the reaffirmation provisions of 11 U.S.C. § 524(c) Count 2: wilful violation of the automatic stay, 11 U.S.C. § 362 Count 3: wilful violation of the discharge injunction, 11 U.S.C. § 524(a)(2) Count 4: contempt of court based upon defendant’s alleged violation of 11 U.S.C. §§ 362 and 524(a)(2) Count 5: violation of RICO, 18 U.S.C. § 1962(c) Count 6: violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692f Count 7: declaratory relief Count 8: injunctive relief Count 9: accounting Count 10: attorney’s fees pursuant to 11 U.S.C. §§ 105, 362(h), 15 U.S.C. § 1692k, and 18 U.S.C.19S4(e) Plaintiff brings this putative class action on behalf of herself and others similarly situated. Defendant moves to dismiss the first and" }, { "docid": "4577934", "title": "", "text": "where the plaintiff alleged that a collection agency violated the FDCPA by sending her collection letters while her Chapter 13 case was pending. Randolph, 368 F.3d at 728. The court considered whether the Bankruptcy Code precluded the FDCPA claim, as both statutes address the same subject, and found that “the statutes overlap, each with coverage that the other lacks.” Randolph, 368 F.3d at 731. But the court also noted that “the FDCPA sets a lower standard of liability and provides lower damages,” and that “[overlapping statutes do not repeal one another by implication; as long as people can comply with both, then courts can enforce both.” Id. The court concluded that Bankruptcy Code Section 362, which “condemns only willful debt-collection attempts” that violate the automatic stay, did not preclude application of the FDCPA, and that allowing the FDCPA claim “would not contradict any portion of the Bankruptcy Code.” Randolph, 368 F.3d at 732. The Ninth Circuit considered the relationship between the FDCPA and the Bankruptcy Code in Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir.2002). There, a Chapter 7 debtor attempted a “ride through” on her mortgage loan — that is, she was current on her payments and continued to make regular monthly mortgage payments. Walls, 276 F.3d at 505. After the debtor’s bankruptcy case concluded, she fell behind on her mortgage payments and the lender brought a foreclosure action. Id. The debtor commenced a class action alleging, among other things, that the lender violated the FDCPA in attempting to collect a debt after it had been discharged in bankruptcy. In particular, she alleged that the lender’s efforts to collect a discharged debt were “prohibited by [the bankruptcy discharge injunction] and [were] an unfair and unconscionable means of collecting debt under the FDCPA.” Walls, 276 F.3d at 505. The court found that the FDCPA claim was based on an alleged violation of the Bankruptcy Code discharge injunction, for which the Bankruptcy Code provides a remedy of contempt. Walls, 276 F.3d at 510. The court observed: To permit a simultaneous claim under the FDCPA would allow through the" }, { "docid": "9826923", "title": "", "text": "pursue a simultaneous claim under the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692f. We think not, as to do so would circumvent the Bankruptcy Code’s remedial scheme. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm. I Walls filed a voluntary bankruptcy petition under Chapter 7 of Title 11 of the United States Code on September 24, 1997. She listed a pre-petition obligation of $118,000 owed to Wells Fargo Bank, secured by her house. She continued to make payments, before and after her debt was discharged on January 2, 1998. This enabled Walls to keep the house under a “ride-through” allowed by In re Parker, 139 F.3d 668, 672-73 (9th Cir.1998), to debtors who are current on their loan payments on secured property and who continue to make payments. Parker permits such debtors to avoid making a statutory election whether to redeem the property or reaffirm the debt pursuant to § 524(c). This meant that Wells Fargo retained its lien on the property and could foreclose in the event that Walls did not make payments. Several payments later, Walls in fact stopped paying. Wells Fargo foreclosed on the house in December 1998. Walls then filed this class action in federal district court. No class has yet been certified. Walls’s complaint alleges that Well Fargo did not obtain an agreement reaffirming its debt under § 524(c) after she filed for bankruptcy, and that her debts were discharged giving rise to the discharge injunction pursuant to § 524(a)(2) and (c). Nevertheless, the bank continued to solicit and collect monthly payments, which she made on October 4, 1997, November 12, 1997, and December 7, 1997 before discharge but after the automatic stay, and on January 19, 1998,. February 24, 1998, and May 9, 1998 after discharge. This activity, Walls alleges, was prohibited by § 524 and was an unfair and unconscionable means of collecting a debt under the FDCPA, 15 U.S.C. § 1692f. Wells Fargo moved to dismiss the claims for willful violation of the discharge injunction and the FDCPA under Rule 12(b)(6) of the Federal Rules of" }, { "docid": "2854147", "title": "", "text": "and found that “debtors may urge a FDCPA claim for alleged actions of B-Real in connection with their bankruptcy case.” B-Real then brought a motion for summary judgment, seeking reconsideration of the bankruptcy court’s determination regarding the application of the FDCPA and asserting that, in any case, it could not be considered a “debt collector” for purposes of the FDCPA. The bankruptcy court denied the motion for summary judgment. B-Real now seeks appellate review of the bankruptcy court’s interlocutory order denying its motion for summary judgment. Both parties agree that the issues presented in this appeal should be reviewed by this Court de novo. B-Real presents two issues for appeal before this Court. First, whether the Bankruptcy Code and Rules preclude application of the FDCPA to a claim arising from the filing of a proof of claim in a bankruptcy proceeding. Second, if not precluded, whether the filing of a proof of claim in a bankruptcy proceeding on a prescribed debt may constitute a violation of the FDCPA. While the Fifth Circuit has not spoken on the first issue, the Ninth and Seventh Circuits have had the opportunity to do so. In Randolph v. IMBS, Inc., a collection agency contacted the debtor in violation of the discharge injunction after payments on the debtor’s confirmed bankruptcy plan began. The debtor then brought suit under the FDCPA. The Seventh Circuit allowed the FDCPA claim, explaining that “overlapping and not entirely congruent remedial systems can coexist.” In contrast, the Ninth Circuit in Walls v. Wells Fargo Bank, N.A., considering allegations that the discharge injunction had been violated when Wells Fargo continued to solicit and collect monthly mortgage payments after debtor’s discharge, held that a debtor could not maintain simultaneous actions under both the Bankruptcy Code and the FDCPA because to do so would “circumvent the remedial scheme of the [Bankruptcy] Code ... ”. The court in Walls went on to state that “[w]hile the FDCPA’s purpose is to avoid bankruptcy, if bankruptcy nevertheless occurs, the debtor’s protection and remedy remain under the Bankruptcy Code.” Analysis In the Rogers’ adversary complaint, they allege that" }, { "docid": "16971411", "title": "", "text": "claims have been discharged, the bankruptcy court and the Bankruptcy Code should dictate the remedy for a violation of that statutory injunction. The court repeated the district court’s conclusion that a determination of the debtor’s FDCPA claim “necessarily entails bankruptcy-laden determinations” such as whether the debtor’s payments were voluntary under Section 524(f), whether she was required to enter into a reaffirmation agreement under Section 524(c), etc. The court also noted that the Bankruptcy Code provides a civil contempt remedy under Section 105 for violation of the discharge injunction and that the existence of this remedy justified dismissal of the debtor’s simultaneous claim under the FDCPA. There is considerable disagreement among courts as to whether the Bankruptcy Code and the FDCPA can peaceably coexist without one treading unfairly on the other’s objectives. The Ninth Circuit Court of Appeals in Walls held that the FDCPA should give way to the Bankruptcy Code remedies in the context of a violation of the discharge injunction. The Seventh Circuit Court of Appeals in Randolph held just the opposite. In Randolph, the court took up three consolidated lower court cases, each holding that the Bankruptcy Code provides the sole remedy against post-bankruptcy debt-collection efforts. Disagreeing with Walls, however, the Seventh Circuit reversed the three lower court cases, concluding that there was no irreconcilable conflict between the FDCPA and the Bankruptcy Code and that “[I]t is easy to enforce both statutes, and any debt collector can comply with both simultaneously.” 368 F.3d at 730. There are plenty of cases adopting the Walls reasoning and plenty of cases alined with Randolph. Where the facts of the case indicate that the debtor’s pursuit of an FDCPA claim will not interfere with the administration of the bankruptcy case, courts have been more willing to permit the claims to go forward, rejecting the creditor’s preemption argument. See, e.g., Doughterty v. Wells Fargo Home Loans, Inc., supra (claim based upon post-petition, post-confirmation acts); Wagner v. Ocwen Fed. Bank, supra n. 8 (collection action complained of occurred after the bankruptcy proceedings were closed); Peeples v. Blatt, supra n. 8 (collection action complained of" }, { "docid": "4577935", "title": "", "text": "502 (9th Cir.2002). There, a Chapter 7 debtor attempted a “ride through” on her mortgage loan — that is, she was current on her payments and continued to make regular monthly mortgage payments. Walls, 276 F.3d at 505. After the debtor’s bankruptcy case concluded, she fell behind on her mortgage payments and the lender brought a foreclosure action. Id. The debtor commenced a class action alleging, among other things, that the lender violated the FDCPA in attempting to collect a debt after it had been discharged in bankruptcy. In particular, she alleged that the lender’s efforts to collect a discharged debt were “prohibited by [the bankruptcy discharge injunction] and [were] an unfair and unconscionable means of collecting debt under the FDCPA.” Walls, 276 F.3d at 505. The court found that the FDCPA claim was based on an alleged violation of the Bankruptcy Code discharge injunction, for which the Bankruptcy Code provides a remedy of contempt. Walls, 276 F.3d at 510. The court observed: To permit a simultaneous claim under the FDCPA would allow through the back door what [the debtor] cannot accomplish through the front door-a private right of action. This would circumvent the remedial scheme of the Code under which Congress struck a balance between the interests of debtors and creditors by permitting (and limiting) debtors’ remedies for violating the discharge injunction to contempt. “[A] mere browse through the complex, detailed, and comprehensive provisions of the lengthy Bankruptcy Code ... demonstrates Congress’s intent to create a whole system under federal control which is designed to bring together and adjust all of the rights and duties of creditors and embarrassed debtors alike.” Id. (quoting MSR Exploration, Ltd. v. Meridian Oil, Inc., 74 F.3d 910, 914 (9th Cir.1996)). The court concluded that the bankruptcy remedy of contempt for a violation of the discharge injunction precluded a simultaneous FDCPA claim. Walls, 276 F.3d at 510-11. Cf. Drnavich v. Cavalry Portfolio Serv., LLC, 2005 WL 2406030, at *2 (D.Minn. Sept.29, 2005) (“[T]he [Walls] court identified neither an irreconcilable conflict between the statutes nor a clear legislative intention that one replace the other.”). In" }, { "docid": "8642288", "title": "", "text": "217 F.3d 1072, 1077 (9th Cir.2000). It is self-executing and enjoins “any act to collect, assess or recover a claim against the debtor that arose before the commencement of the case.” Id. (quoting 11 U.S.C. § 362(a)(6)). The automatic stay dissolves on the discharge date. In re Mayton, 208 B.R. 61, 66 (9th Cir. BAP 1997). A discharge of bankruptcy “operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived.” 11 U.S.C. § 524(a)(2) (emphasis added). After filing a Chapter 7 petition, a debt- or, such as plaintiff, who has consumer debts secured by property of the estate must file a statement of her intention to retain or surrender the property with the clerk, and, “if applicable,” specify that she claims the property as exempt, plans to redeem the property, or intends to reaffirm the debt. See 11 U.S.C. § 521(2)(A). The debtor has forty-five days in which to perform her expressed intention. Id. § 521(2)(B). Reaffirmation and redemption, however, are not the debtor’s only alternatives. In the Ninth Circuit, debtors who are current on their loan payments on secured property may elect to hold on to the collateral securing the loan and continue making payments, without electing whether to redeem the property or reaffirm the debt. See In re Parker, 139 F.3d 668, 673 (9th Cir.), cert. denied, McClellan Fed. Credit Union v. Parker, 525 U.S. 1041, 119 S.Ct. 592, 142 L.Ed.2d 535 (1998). Here, it appears that plaintiff chose the last option, electing to hold on to her home and to continue to make payments. While it is clear that a debtor, having so elected, is no longer personally hable for the debt, the creditor retains a hen on the property and may foreclose in the event the debtor does not continue to make payments. See In re Mayton, 208 B.R. at 66. The parties dispute what, if any, additional actions or measures may be" }, { "docid": "9826924", "title": "", "text": "Walls did not make payments. Several payments later, Walls in fact stopped paying. Wells Fargo foreclosed on the house in December 1998. Walls then filed this class action in federal district court. No class has yet been certified. Walls’s complaint alleges that Well Fargo did not obtain an agreement reaffirming its debt under § 524(c) after she filed for bankruptcy, and that her debts were discharged giving rise to the discharge injunction pursuant to § 524(a)(2) and (c). Nevertheless, the bank continued to solicit and collect monthly payments, which she made on October 4, 1997, November 12, 1997, and December 7, 1997 before discharge but after the automatic stay, and on January 19, 1998,. February 24, 1998, and May 9, 1998 after discharge. This activity, Walls alleges, was prohibited by § 524 and was an unfair and unconscionable means of collecting a debt under the FDCPA, 15 U.S.C. § 1692f. Wells Fargo moved to dismiss the claims for willful violation of the discharge injunction and the FDCPA under Rule 12(b)(6) of the Federal Rules of Civil Procedure; Walls moved to refer the core bankruptcy issues to the bankruptcy court. The district court granted Walls’s motion by referring her claims for willful violation of the automatic stay, and for contempt on account of the alleged violation of the automatic stay and the discharge injunction, to the bankruptcy court. Neither this referral, nor these claims, are before us on appeal. Otherwise, the court granted Wells Fargo’s motion to dismiss. Walls timely appeals dismissal of her claims based on an implied right of action under § 524, and for violation of the FDCPA. II Although both parties agree that we have jurisdiction and a motions panel of this court ruled that we do pursuant to 28 U.S.C. § 1291, we must nonetheless examine the issue sua sponte. In re Hawaii Corp., 796 F.2d 1139, 1141 (9th Cir. 1986). A question arises because two of the claims in Walls’s complaint were referred to the bankruptcy court while the remaining claims were dismissed. In these circumstances it could be that the case is not final" }, { "docid": "19767941", "title": "", "text": "collection of any amount ... unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” FDCPA § 1692f. For this violation, Debtor sought to recover from B-Real her actual damages, statutory damages in an amount up to $1,000, and attorney’s fees and costs. FDCPA § 1692k(a)(l)-(3). In refusing to dismiss Debtor’s claim, B-Real contends the bankruptcy court erred in two respects. First, relying on the Ninth Circuit’s decision in Walls, B-Real argues that the Code and Rules preclude application of the FDCPA in the context of the bankruptcy claims process. Second, B-Real contends that the filing of a proof of claim in a bankruptcy case is not an attempt to collect a debt against the debt- or and, therefore, cannot be a violation of the FDCPA. For both reasons, B-Real urges the Panel to hold that the filing of a proof of claim cannot, as a matter of law, violate FDCPA. We hold that the Ninth Circuit’s decision in Walls controls the outcome here, and that the Code precludes the application of the FDCPA under these facts. In Walls, a chapter 7 debtor continued to make payments to the creditor holding the mortgage on her house after receiving a discharge in her bankruptcy case to enable her to keep the home under the so-called “ride-through” doctrine. Walls, 276 F.3d at 505 (citing In re Parker, 139 F.3d 668, 672-73 (9th Cir.1998)). When the debtor later stopped making payments, the creditor foreclosed. The debtor responded by commencing a class action in federal district court on behalf of chapter 7 debtors to recover damages, alleging, among other theories, that the creditor had violated FDCPA in attempting to collect a debt after it had been discharged in the debt- or’s bankruptcy case. The district court dismissed this claim, and the debtor appealed. On appeal, the Ninth Circuit affirmed the dismissal, deciding that the debtor’s FDCPA claim based upon the creditor’s alleged violation of the § 524 discharge was precluded by the Code. The court began its analysis by noting that “[t]here is no escaping that Wall’s FDCPA" }, { "docid": "17675460", "title": "", "text": "Roundup Funding, LLC, 622 F.3d 93 (2d Cir.2010); Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir.2002); and B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225 (9th Cir. BAP 2008) (finding that FDCPA claims were precluded by the Bankruptcy Code), with Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir.2004) (finding the FDCPA claims not precluded). The Ninth Circuit has taken a broad approach, holding that a debt collector’s communications to a consumer debtor in the context of a bankruptcy proceeding cannot be the basis for an FDCPA claim. In Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, a debtor sued a bank for attempting to collect a debt that had been discharged in bankruptcy. The Ninth Circuit concluded that the debtor’s FDCPA claim was barred because it was “based on an alleged violation of § 524” and consideration of it “necessarily entails bankruptcy-laden determinations.” Id. at 510. To decide the FDCPA claim, the district court would first need to address issues typically decided by a bankruptcy court. These issues included whether the debtor’s payments were “voluntary” under § 524(f) and whether she was required to enter a reaffirmation agreement under § 524(c). Id. The Ninth Circuit also found that the bankruptcy court’s contempt power allowed the debtor to enforce the discharge injunction, removing the need to invoke the FDCPA. In dismissing the FDCPA claim, the Ninth Circuit observed that a “ ‘mere browse through the complex, detailed, and comprehensive provisions of the lengthy Bankruptcy Code ... demonstrates Congress’s intent to create a whole system under federal control which is designed to bring together and adjust all of the rights and duties of creditors and embarrassed debtors alike.’ ” Id. (quoting MSR Exploration, Ltd. v. Meridian Oil, Inc., 74 F.3d 910, 914 (9th Cir.1996)). The Walls court concluded that allowing an FDCPA claim based on a violation of the Bankruptcy Code’s discharge injunction would “circumvent the remedial scheme of the Code under which Congress struck a balance between the interests of debtors and creditors by permitting (and limiting) debtors’ remedies for violating the discharge injunction" } ]

[ { "docid": "22651028", "title": "", "text": "v. Georgia, No. 75-5706, Proffitt v. Florida, and No. 75-5394, Jurek v. Texas, insofar as each upholds the death sentences challenged in those cases. I would set aside the death sentences imposed in those cases as vio-lative of the Eighth and Fourteenth Amendments. [This opinion applies also to No. 75-5706, Proffitt v. Florida, post, p. 242, and No. 75-5394, Jurek v. Texas, post, p. 262.] Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion of Warren, C. J.). Quoting T. Sellin, Tlie Death Penalty, A Report for the Model Penal Code Project of the American Law Institute 15 (1959). Novak v. Beto, 453 F. 2d 661, 672 (CA5 1971) (Tuttle, J., concurring in part and dissenting in part). Tao, Beyond Furman v. Georgia: The Need for a Morally Based Decision on Capital Punishment, 51 Notre Dame Law. 722, 736 (1976). Trop v. Dulles, 356 U. S., at 99 (plurality opinion of Warren, C. J.). A. Camus, Reflections on the Guillotine 5-6 (Fridtjof-Karla Pub. 1960). Mr. Justice Marshall, dissenting. In Furman v. Georgia, 408 U. S. 238, 314 (1972) (concurring opinion), I set forth at some length my views on the basic issue presented to the Court in these cases. The death penalty, I concluded, is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. That continues to be my view. I have no intention of retracing the “long and tedious journey,” id., at 370, that led to my conclusion in Fur-man. My sole purposes here are to consider the suggestion that my conclusion in Furman has been undercut by developments since then, and briefly to evaluate the basis for my Brethren’s holding that the extinction of life is a permissible form of punishment under the Cruel and Unusual Punishments Clause. In Furman I concluded that the death penalty is constitutionally invalid for two reasons. First, the death penalty is excessive. Id., at 331-332; 342-359. And second, the American people, fully informed as to the purposes of the death penalty and its liabilities, would in my view reject it as morally unacceptable. Id., at 360-369. Since" } ]

[ { "docid": "6329483", "title": "", "text": "Sup. Ct. Cal. Certiorari denied. Justice Brennan, dissenting. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant certiorari and vacate the death sentence in this case. Justice Marshall, dissenting. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting), I would grant certiorari and vacate the death sentence in this case. Even if I did not hold this view, however, I would grant the petition to resolve the question whether a trial court may instruct a penalty phase jury that, “if you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” I have grave doubts that such an instruction permits the individualized and reliable sentencing determination that the Constitution requires in capital cases, particularly where, as here, it is coupled with prosecutorial remarks stressing the limits on jurors’ discretion. I Petitioner Bernard Lee Hamilton was charged with first-degree murder, kidnaping, robbery, and burglary. During voir dire, the prosecutor told 11 of the 12 persons who ultimately served as jurors that the law required them to impose a death sentence if they found that the aggravating factors outweighed the mitigating factors. All 11 persons stated that they understood the law as explained by the prosecutor and promised to follow it. Hamilton was convicted of all charges. He was found to have committed the murder in. the course of robbery, kidnaping, and burglary. These special circumstance findings made him eligible for the death penalty. During closing argument in the penalty phase, the prosecutor emphasized the limits on the jurors’ discretion. “Now remember at the time of the voir dire you all promised that in the event that this case went to a penalty phase and the aggravation evidence outweighed the mitigation evidence, you would impose the death penalty. Well, that is the case here," }, { "docid": "15563132", "title": "", "text": "Sup. Ct. La.; C. A. 5th Cir.; Sup. Ct. La.; C. A. 5th Cir.; Sup. Ct. Ky.; Sup. Ct. Idaho; Sup. Ct. Tenn.; Sup. Ct. Tenn.; and Sup. Ct. Fla. Certiorari denied. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "1125831", "title": "", "text": "Sup. Ct. Fla.; Sup. Ct. Ga.; Sup. Ct. Fla.; Sup. Ct. S. C.; Sup. Ct. Fla.; Super. Ct. Ga., Butts County; Sup. Ct. Ariz.; Sup. Ct. Neb.; and Sup. Ct. Fla. Certiorari denied. Reported below: No. 81-5379, 399 So. 2d 964; No. 81-5562, 247 Ga. 814, 279 S. E. 2d 650; No. 81-5784, 403 So. 2d 418; No. 81-5848, 277 S. C. 53, 283 S. E. 2d 179; No. 81-5944, 403 So. 2d 341; No. 81-6385,131 Ariz. 195, 639 P. 2d 1020; No. 81-6435, 210 Neb. 457, 316 N. W. 2d 33; No. 81-6437, 407 So. 2d 894. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "14943180", "title": "", "text": "Sup. Ct. Fla.; Sup. Ct. Fla.; and Sup. Ct. N. C. Certiorari denied. Reported below: No. 81-5086, 397 So. 2d 910; No. 81-5329, 399 So. 2d 356. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "15402914", "title": "", "text": "Sup. Ct. Tenn.; C. A. 3d Cir.; Sup. Ct. Va.; Sup. Ct. Fla.; and Sup. Ct. Pa. Certiorari denied. Reported below: No. 89-5697, 776 S. W. 2d 506; No. 89-5935, 881 F. 2d 44; No. 89-6068, 238 Va. 275, 384 S. E. 2d 775; No. 89-6078, 547 So. 2d 622. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "8475613", "title": "", "text": "Sup. Ct. Miss.; Sup. Ct. Miss.; Ct. App. Md.; Sup. Ct. Miss.; Sup. Ct. N. C.; Sup. Ct. N. C.; Sup. Ct. Va.; Sup. Ct. Mo.; Sup. Ct. Fla.; and Sup. Ct. Ariz. Certiorari denied. Reported below: No. 84-5626, 453 So. 2d 337; No. 84-5727, 454 So. 2d 468; No. 84-5735, 300 Md. 387, 478 A. 2d 1143; No. 84-5783, 454 So. 2d 445; No. 84-5792, 311 N. C. 489, 319 S. E. 2d 591; No. 84-5845, 312 N. C. 1, 320 S. E. 2d 642; No. 84-5880, 228 Va. 124, 321 S. E. 2d 273; No. 84-5881, 676 S. W. 2d 494; No. 84-5960, 456 So. 2d 885; No. 84-5964, 142 Ariz. 323, 690 P. 2d 42. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "18942669", "title": "", "text": "Sup. Ct. Ariz. Certiorari denied. Justice O’Connor took no part in the consideration or decision of this petition. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case." }, { "docid": "16937581", "title": "", "text": "Sup. Ct. Ark.; Sup. Ct. Ga.; and Sup. Ct. Ariz. Certiorari denied. Reported below: No. 80-5204, 268 Ark. 312, 595 S. W. 2d 934; No. 80-5215, 245 Ga. 426, 265 S. E. 2d 565, and 245 Ga. 882, 268 S. E. 2d 349; No. 80-5228, 125 Ariz. 233, 609 P. 2d 48. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "22561298", "title": "", "text": "Sup. Ct. Ga.; Sup. Ct. Mo.; and Sup. Ct. Mo. Certiorari denied. Reported below: No. 82-5793, 249 Ga. 871, 295 S. E. 2d 281; No. 82-5834, 638 S. W. 2d 739; No. 82-5861, 638 S. W. 2d 726. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "22028061", "title": "", "text": "Sup. Ct. Mo.; and Sup. Ct. Tenn. Certiorari denied. Reported below: No. 82-5648, 635 S. W. 2d 673; No. 82-5698, 638 S. W. 2d 342. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "22386579", "title": "", "text": "Sup. Ct. Ariz.; Ct. Crim. App. Tex.; Sup. Ct. Ark.; Super. Ct. Ga., Butts County; Sup. Ct. Va.; Sup. Ct. Ark.; C. A. 11th Cir.; Sup. Ct. Ga.; Sup. Ct. Fla.; Super. Ct. Ga., Butts County; Sup. Ct. Tenn.; Super. Ct. Ga., Butts County; Sup. Ct. Va.; Sup. Ct. Ark.; Sup. Ct. Ariz.; C. A. 9th Cir.; and Sup. Ct. Fla. Certiorari denied. Reported below: No. 81-5634, 129 Ariz. 526, 633 P. 2d 335 (first case), 129 Ariz. 546, 633 P. 2d 355 (second case); No. 81-6536, 626 S. W. 2d 758; No. 81-6711, 275 Ark. 71, 628 S. W. 2d 284; No. 81-6861, 223 Va. 66, 286 S. E. 2d 162; No. 81-6976, 275 Ark. 410, 630 S. W. 2d 44; No. 81-6978, 660 F. 2d 573, 671 F. 2d 858, and 677 F. 2d 20; No. 82-5001, 249 Ga. 228, 290 S. E. 2d 43; No. 82-5020, 412 So. 2d 850; No. 82-5088, 632 S. W. 2d 542; No. 82-5170, 131 Ariz. 598, 643 P. 2d 694; No. 82-5188, 413 So. 2d 1. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "22930435", "title": "", "text": "Sup. Ct. 111.; Sup. Ct. Ill,; Sup. Ct. 111.; Sup. Ct. Ill; Sup. Ct. N. C.; Sup. Ct. Cal.; C. A. 5th Cir.; C. A. 5th Cir.; Sup. Ct. Tenn.; Sup. Ct. Mo.; Sup. Ct. Cal.; Sup. Ct. Cal.; Ct. Crim. App. Okla.; C. A. 8th Cir.; and Sup. Ct. Ohio. Certiorari denied. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "1148895", "title": "", "text": "Sup. Ct. La. Certiorari denied. Justice Brennan, with whom Justice Marshall joins, dissenting from denial of certiorari. The petitioner Jimmy L. Glass has been condemned to death by electrocution — “that is, causing to pass through the body of the person convicted a current of electricity of sufficient intensity to cause death, and the application and continuance of such current through the body of the person convicted until such person is dead.” La. Rev. Stat. Ann. § 15:569 (West 1981). Glass contends that “electrocution causes the gratuitous infliction of unnecessary pain and suffering and does not comport with evolving standards of human dignity,” and that this method of officially sponsored execution therefore violates the Eighth and Fourteenth Amendments. Pet. for Cert. 27. The Supreme Court of Louisiana held that this claim must summarily be rejected pursuant to “clearly established principles of law” and observed that, in any event, the claim is wholly lacking in medical or scientific merit. 455 So. 2d 659, 660, 671 (1984). I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting), and would therefore grant certiorari and vacate Glass’ death sentence in any event. One of the reasons I adhere to this view is my belief that the “physical and mental suffering” inherent in any method of execution is so “uniquely degrading to human dignity” that, when combined with the arbitrariness by which capital punishment is imposed, the trend of enlightened opinion, and the availability of less severe penological alternatives, the death penalty is always unconstitutional. Furman v. Georgia, 408 U. S. 238, 287-291 (1972). Even if I thought otherwise, however, I would vote to grant certiorari. Glass’ petition presents an important and unsettling question that cuts to the very heart of the Eighth Amendment’s Cruel and Unusual Punishments Clause — a question that demands measured judicial consideration. Of the 42 officially sponsored executions carried out since the Court’s decision in Gregg v. Georgia, supra, 31 have been by means" }, { "docid": "21902269", "title": "", "text": "Sup. Ct. Fla. Certio-rari denied. Justice Brennan, dissenting. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant certiorari and vacate the death sentence in,,this case. Justice Marshall, dissenting. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, I would grant certio-rari and vacate petitioner’s death sentence on this basis alone. However, even if I accepted the prevailing view that the death penalty can constitutionally be imposed under certain circumstances, I would grant certiorari and vacate the death sentence on the ground that neither the jury that convicted petitioner of murder nor the judge who sentenced him found that he “kill[ed], attempt[ed] to kill, or intended] that a killing take place or that lethal force ... be employed.” Enmund v. Florida, 458 U. S. 782, 797 (1982). The jury was instructed that “liability for first degree murder extends to all co-felons who are personally present during the commission of the felony” and that “[ujnder the felony murder rule, [the] state of mind of the defendant is immaterial.” Tr. 2678. In imposing sentence, the trial judge did not find that petitioner himself killed, attempted to kill, or intended to kill. Although the Supreme Court of Florida concluded that “there was sufficient evidence from which the jury could have found [petitioner] guilty of premeditated murder,” 424 So. 2d 726, 733 (1982) (emphasis added), neither the jury nor the judge actually made such a finding. Under these circumstances our decision in Enmund v. Florida requires that petitioner’s death sentence be vacated." }, { "docid": "8509235", "title": "", "text": "Ct. Crim. App. Tex.; C. A. 11th Cir.; Sup. Ct. Nev.; Sup. Ct. Ark.; Sup. Ct. Cal.; Ct. Crim. App. Tex.; Ct. Common Pleas of Lexington County, S. C-; Ct. Crim. App. Tex.; Sup. Ct. Ga.; Sup. Ct. Nev.; Ct. App. Mo., Eastern Dist.; Sup. Ct. Ala.; Sup. Ct. Tenn.; Ct. Crim. App. Tenn.; Ct. Crim. App. Tex.; Sup. Ct. Tenn.; Sup. Ct. La.; C. A. 11th Cir.; Sup. Ct. Ariz.; Sup. Ct. Neb.; Sup. Ct. Mo.; Ct. Crim. App. Tex.; Ct. Crim. App. Tex.; Sup. Ct. Ariz.; No. 86-7114. No. 86-7129. No. 87-5011. No. 87-5025. No. 87-5029. No. 87-5033. No. 87-5040. No. 87-5042. No. 87-5089. No. 87-5098. No. 87-5100. No. 87-5117. No. 87-5139. No. 87-5152. No. 87-5192. No. 87-5203. No. 87-5215. No. 87-5258. No. 87-5268. Sup. Ct. Va.; Sup. Ct. Ga.; Sup. Ct. Fla.; Sup. Ct. Ark.; Sup. Ct. 111.; Sup. Ct. Fla.; Ct. Crim. App. Tenn.; C. A. 11th Cir.; Sup. Ct. Fla.; Sup. Ct. Tenn.; Ct. App. Mo., Eastern Dist.; C. A. 5th Cir.; Sup. Ct. 111.; Sup. Ct. Pa.; Super. Ct. Ga., Butts County; Sup. Ct. Fla.; Sup. Ct. Fla.; Sup. Ct. 111.; and Ct. Crim. App. Okla. Certiorari denied. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "16938303", "title": "", "text": "Sup. Ct. Fla.; Sup. Ct. Miss.; and Ct. Crim. App. Tex. Certiorari denied. Reported below: No. 80-5335, 381 So. 2d 983; No. 80-5495, 598 S. W. 2d 238. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "11693023", "title": "", "text": "Sup. Ct. Term.; Super. Ct. Ga., Butts County; Super. Ct. Ga., Butts County; Sup. Ct. Va.; Sup. Ct. Ariz.; Super. Ct. Ga., Butts County; Sup. Ct. Mont.; and Sup. Ct. Fla. Cer-tiorari denied. Reported below: No. 81-5786, 620 S. W. 2d 467; No. 81-5872, 222 Va. 667, 283 S. E. 2d 905; No. 81-5919, 129 Ariz. 557, 633 P. 2d 366; No. 81-5937,-Mont.-, 633 P. 2d 624; No. 81-5970, 403 So. 2d 355. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "16937738", "title": "", "text": "Sup. Ct. Miss.; Sup. Ct. Fla.; Sup. Ct. Ga.; Sup. Ct. Ga.; Ct. Crim. App. Tex.; Sup. Ct. Miss.; and Sup. Ct. Ariz. Certiorari denied. Reported below: No. 79-6715, 379 So. 2d 499; No. 79-6862, 378 So. 2d 765; No. 79-6884, 245 Ga. 868, 268 S. E. 2d 316; No. 80-5119, 245 Ga. 266, 264 S. E. 2d 204; No. 80-5163, 595 S. W. 2d 516; No. 80-5249, 381 So. 2d 999; No. 80-5399, 126 Ariz. 283, 614 P. 2d 825. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "12541854", "title": "", "text": "Sup. Ct. Ala.; Ct. Crim. App. Ala.; and Sup. Ct. Cal. Certiorari denied. Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases." }, { "docid": "21909394", "title": "", "text": "Sup. Ct. Ga. Certiorari denied. Justice Marshall and Justice Blackmun would grant the petition for writ of certiorari, vacate the judgment, and remand the case for farther consideration in light of Caldwell v. Mississippi, 472 U. S. 320 (1985). Justice Brennan, dissenting. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant certiorari and vacate the death sentence in this case." } ]

[ { "docid": "1036912", "title": "", "text": "OPINION ALBERT V. BRYAN, Circuit Judge: “Impacted” school areas are those whose school populations have been substantially enlarged by the attendance of Federal employees’ children, but at the same time are losing school tax revenues because of the United States government’s immunity from land taxes, both factors arising from increased Federal activities in the area. These conditions prompted Congress to provide financial aid for operation of the local educational facilities, P.L. 874 In applying a State formula for State assistance to local school districts, Virginia has deducted from the share otherwise allocable to the district a sum equal to a substantial percentage of any Federal “impact” funds receivable by the district. Residents, real estate owners and taxpayers of the City of Norfolk, later joined by those of the County of Fairfax, Virginia, in behalf of themselves and others similarly situated, here attack this deduction and an alternative provision as violative of the purpose and intent of the act of Congress and as transgressing the Fourteenth Amendment. We uphold their contention. Defendants are the State officials charged with the responsibility and duty of distributing the public moneys appropriated for schools by the legislature, the General Assembly of Virginia. There is no claim that these officers failed to follow the directions of the State law. The question here is the validity of that legislation. Concededly, the amounts capturable in taxes on lands and buildings in Norfolk and Fairfax, respectively, if the property occupied by the Government were generally assessable or leviable for school support, would far exceed the Federal contribution in each place. Likewise it must be acknowledged that the influx of employees accompanying the Government’s operations has swelled the school populations enormously in this city and county, necessitating enlarged outlays both in operating and capital expenses. As applied by the United States Commissioner of Education, the act of Congress provided for payments for the 1965-66 school year for operating costs of $269.36 for each child in the Norfolk school system whose parent resided and worked ppon Federal property, and the sum of $134.68 for each child whose parent worked on the" } ]

[ { "docid": "10287363", "title": "", "text": "MEMORANDUM OPINION BRATTON, District Judge. This is a class action for declaratory and injunctive relief brought pursuant to 42 U.S.C.A. §§ 1981-83 and 28 U.S.C. A. §§ 1361, 2201-02. The plaintiffs are Navajo Indian children, who, through their parents, are suing in their own behalf and in behalf of all other Indian students who attend schools in the Gallup-McKinley County School District. Alleged are discrimination against them on the basis of race and diversion of federal monies allocated to the school district exclusively for the benefit of Indian children, to-wit: Johnson-O'Malley funds, granted pursuant to 25 U.S.C.A. § 452 to be used generally for the education of Indian children, and Title I funds, granted pursuant to 20 U.S.C.A. § 241a to be used for the special educational needs of children of low-income families who are, in the Gallup-McKinley County School District, overwhelmingly Indian children. The Gallup-McKinley County Board of Education, the Superintendent of Schools, A. C. Woodburn (hereinafter referred to as the local defendants) and the state Superintendent of Public Instruction, Leonard DeLayo (hereinafter referred to as the state defendant) are charged with racial discrimination against the plaintiffs and their class in denial of their right of equal protection because of these defendants’ allocation of local and state monies, and federal Impact Aid monies. The local defendants are also charged with having violated the provisions of 20 U.S.C.A. § 241a (hereinafter denominated Title I) and 25 U.S.C.A. § 452 (hereinafter referred to as Johnson-O’Malley) by use of funds obtained thereunder for purposes not authorized by those Acts and their regulations. Also joined as defendants are Elliot Richardson, the Secretary of Health, Education and Welfare, Sidney P. Marland, Commissioner of the United States Office of Education, and Rogers C. B. Morton, Secretary of the Interior (hereinafter referred to as the federal defendants). These defendants and the state defendant are sued for their alleged failure to establish proper review and monitoring procedures for the expenditures of monies received by the Gallup-McKinley County School District under Title I and Johnson-O’Malley. All defendants are sued individually and in their official capacities with regard to" }, { "docid": "8091138", "title": "", "text": "which provides: “There shall be throughout the State of Maryland a general system of free public schools, according to the provisions of this article.” Since 1865 it has been the uniform policy and practice of the State to provide separate schools for white and colored children. The governmental subdivisions of the State consist of twenty-three counties and Baltimore City. These sub-divisions are respectively made the units for providing and maintaining free public education. In each County and in Baltimore City there is a local Board of Education sometimes called School Commissioners, on whom the statutes confer the authority and the duty to provide and maintain the schools and, in conjunction with the County Commissioners, to raise the necessary public funds by taxation to pay the expenses thereof, supplemented to some extent by general state school funds. Successive statutes up to and including the one now in force provide that the salaries of teachers in the City and Counties shall he fixed by the Board of School Commissioners of the City and the several Counties. Section 3 of Article 77 provides that “educational matters affecting a County shall be under the control of a County Board of Education”. Sections 1 and 9 to 26, inclusive, also provide for and outline the duties of the State Board of Education for which the State Superintendent of Schools shall act as the chief executive officer. The State Board is authorized to determine the educational policy of the State, including the establishment of standards arid determination and certification of the qualifications of teachers and conditions for the hygienic and sanitary construction of school buildings; but it has no power to select or employ or fix the salaries of the teachers, which function is committed solely to the County Boards. The primary fund necessary for the maintenance of the schools in the several Counties and Baltimore City is raised by specific taxation of property in the City and Counties for that purpose but supplemental appropriations are made from state taxes levied for education, and distributed to the several Counties in accordance with section 204 of Art," }, { "docid": "7776311", "title": "", "text": "for assessment purposes. To show discrimination as amongst the children in the various Florida counties, one county as against another county, it would be necessary to first know what an ad valorem tax levy would produce. This cannot be known absent an uniform valuation system. A one mill levy in one county may be based on an assessment of ten per cent of actual value while in another it may be based on an assessment of some other percentage of actual value. To increase the complexity, it would then be necessary, from the standpoint of each child’s share of the education revenues, to relate all state education expenditures under the distributive formula of the Florida Minimum Foundation Program for Education (F.S.A. Sections 236.01-236.07), to the children in the respective Florida counties. In addition, federal funds for education must also be added to the total before the equal protection computation could be made. Once this was all known, it would then be possible for one to determine whether discrimination exists as betwen the local school systems. This state of affairs means that no cognizable equal protection question is presented for an equal protection claim must rest on discrimination. Cf. Davis v. Georgia State Board of Education, 5 Cir., 1969, 408 F.2d 1014 [March 11, 1969]. Moreover, as a third ground, it would appear, contrary to what the majority implies in citing the same case, that the Supreme Court has already declined an equal protection elasticity approach analogous to that asserted by appellants. McInnis v. Shapiro, 293 F.Supp. 327 (three-judge court, N.D.Ill., 1968), aff’d sub nom. McInnis v. Ogilvie, 394 U.S. 322, 89 S.Ct. 1197, 22 L.Ed.2d 308 (1969). There the three-judge district court concluded that the equal protection clause did not require the apportioning of state funds as among school districts according to the educational needs of the students. In addition to this basic holding, the court went further to say that even if the equal protection clause required such an apportionment, the controversy would be non justiciable in that court-manageable standards would be lacking. Thus we need not contemplate what" }, { "docid": "8277581", "title": "", "text": "this Court, they feared the county would not be able to provide for city children an acceptable level of education. Apprehension was also expressed that unless a separate school division were established, city children would be bused to county schools rather than permitted to attend the nearest school. The common school division had been established only twenty months before, over the objection of the county board of supervisors. Efforts to create a joint school system were fruitless, however, and the contract terms were unsatisfactory. The city recognized that the State Board’s policy discouraged the creation of small school districts, but stated that separation in this case would foster quality education. The State Board denied the request, pending federal litigation. This action signifies that common division status was considered by all to have an impact not only upon the administrative structure but on the attendance patterns as well. Currently the City of Fairfax and Fair-fax County are separate school divisions, each with its own superintendent. They operate together pursuant to a contract, with the county educating the city children. Section 22-100.9 of the Virginia Code provides that in the event a consolidated school division is created, operating costs and capital outlays shall be shared on a pro-rata basis on enrollment of pupils, or on another basis agreed to by participating political subdivisions. The State Board of Education never specifically recommended repeal or modification of this statute. This section was first enacted in 1954 and dealt with expenditures for capital outlay and incurring indebtedness for construction of school buildings. A 1956 amendment added “local operating costs.” In 1957, while the creation of a consolidated school division embracing the City of Covington and Alleghany County was under consideration, the Attorney General of Virginia ruled upon the validity of a method of meeting capital and operating costs other than that set forth specifically in § 22-100.9. He stated that it was permissible for the political subdivisions to share such costs as to each school facility according to the number of residents of each subdivision educated in that school. Rep.Atty.Gen. 240 (1957). In December of" }, { "docid": "669780", "title": "", "text": "system in issue is violative of the right to equal protection under the Fourteenth Amendment to the United States Constitution, this Court need not reach the issue left open by the Supreme Court in Rodriguez, supra, as to whether it also violates any due process rights the plaintiffs might have to a minimally adequate education. The evidence discloses that in several cities and counties, local departments of social services/welfare have apparently permitted the practice of accepting legal custody of handicapped children and placing them in foster care primarily for the purpose of receiving funding which would enable those children to receive special education services in private facilities. Plaintiffs appropriately contend that such practices violate their fundamental right to family integrity. See Alsager v. District Court of Polk County, Iowa, 406 F.Supp. 10 (D.C. Iowa 1975). Such a practice, in effect, conditions the provision of a government service, special education, upon the relinquishment of a constitutional right. The evidence further discloses and the Court finds that while such practices have been engaged in they are contra to the policies of the State Department of Welfare and such egregious violations of the plaintiffs’ rights, where they exist, must be determined on a case by case basis with the benefit of more fully developed factual records. With respect to the equal protection violation, the relief must proceed as expeditiously as reasonably appropriate. The plaintiff class of handicapped children is currently excluded from any appropriate educational opportunity by virtue of the Virginia partial tuition reimbursement system. Recognizing education as “perhaps the most important function of state and local governments” and Virginia’s provision of an education to all other handicapped children, funds must be allocated equitably to the end that no child in the plaintiff class is excluded from an appropriate education. Lack of sufficient funds to finance all of the services and programs that are needed and desirable in the public school system is no justification for the resulting total exclusion of the plaintiff class from an appropriate education. The current funding systems in operation in Henrico and Fairfax Counties are excellent examples of" }, { "docid": "745601", "title": "", "text": "(1973). The equal protection clause, however, does not serve only to protect those rights explicitly recognized in the body of our Constitution. “It is of course true that a law that impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional. See Shapiro v. Thompson, 394 U.S. 618, 634, 638 [89 S.Ct. 1322, 1331, 1337, 22 L.Ed.2d 600]; id., at 642-644 [89 S.Ct. at 1335-1337] (concurring opinion).” Mobile v. Bolden, 446 U.S. 55, 76, 100 S.Ct. 1490, 1504, 64 L.Ed.2d 47 (1980). In Rodriguez the Supreme Court considered a challenge to the method of financing public schools in Texas. That method relied heavily on local property taxes. Because of differences in taxable property values among the various school districts, substantial interdistrict disparities in per pupil expenditures resulted. The plaintiffs in Rodriguez claimed that the Texas system of financing public education operated to disadvantage children in poor school districts. Because only relative differences in spending .levels were involved, the court stated that “no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.” Id., 411 U.S. at 37,93 S.Ct. at 1299. The challenged financing provisions excluded no one from the public schools. In Rodriguez no children were denied admission because their parents were unable to pay tuition. The statute challenged in this action is very different. Many children received no education at all, either because the school districts in which they live have decided to deny them admission, or because they cannot afford the tuition required. Those school districts which opt to admit children receive proportionately less state support than those which exercise their prerogative to exclude undocumented children. Under section 21.031, Texas has decided to educate some children within its jurisdiction while absolutely depriving others of the benefit of education. While holding that a system which contributes more funds for the education of some children than others does not infringe upon a fundamental interest, Justice Powell" }, { "docid": "7776310", "title": "", "text": "principle of comity would dictate that the legality of the statute in question be tested in the state courts. It involves the fiscal affairs of the State of Florida and goes to the heart of the taxing process. The local property tax limitation in question is only a part of the total state and local taxing scheme and legality vel non necessarily draw's the entire taxing process into consideration. A federal court should be reluctant to interfere with the fiscal affairs of a state even by declaratory judgment. Second, assuming arguendo that a cause of action lies under the theory of the complaint for violation of the equal protection clause, there is no way, under the allegations of the complaint and the admitted facts, to demonstrate discrimination through the statute under attack. Without such a premise, the equal protection question is insubstantial. That there can be no such premise became clear on the oral argument of this case when it was agreed that there is no uniform valuation of property in the State of Florida for assessment purposes. To show discrimination as amongst the children in the various Florida counties, one county as against another county, it would be necessary to first know what an ad valorem tax levy would produce. This cannot be known absent an uniform valuation system. A one mill levy in one county may be based on an assessment of ten per cent of actual value while in another it may be based on an assessment of some other percentage of actual value. To increase the complexity, it would then be necessary, from the standpoint of each child’s share of the education revenues, to relate all state education expenditures under the distributive formula of the Florida Minimum Foundation Program for Education (F.S.A. Sections 236.01-236.07), to the children in the respective Florida counties. In addition, federal funds for education must also be added to the total before the equal protection computation could be made. Once this was all known, it would then be possible for one to determine whether discrimination exists as betwen the local school systems." }, { "docid": "8277452", "title": "", "text": "judicial opinions bear witness to Virginia’s policy permitting the transportation of pupils across political subdivision lines for the purposes of maintaining segregation. Buckner v. County School Board of Greene County, 332 F.2d 452 (4th Cir. 1964); School Board of Warren County v. Kilby, 259 F.2d 497 (4th Cir. 1958); Goins v. County School Board of Grayson County, 186 F.Supp. 753 (W.D.Va.1960); Corbin v. County School Board of Pulaski County, supra. The State Board has been deeply implicated in the administration of the tuition grant and pupil scholarship programs, which were operated completely independently of the wishes of local school officials and resulted in mass movement of pupils across political boundaries in the Richmond area and throughout the state as well, to the extent that it was necessary to appeal to local school boards to confer in order to coordinate the exchange of pupils. In the Richmond area, notably, when the scholarship program was at its height, support for local school expenditures in the counties was high as well. These instances — and there are others —of the education of pupils of one political subdivision in schools run in whole or in part by officials of another demonstrate as a matter of historical fact the insubstantiality of any argument that strong state concerns support their maintenance as barriers to the achievement of integration. For the State has countenanced much more than the plaintiffs seek here. Standard practice has encompassed schemes under which students are educated in systems financed and operated by local officials wholly irresponsible, in the political sense, to residents of the students’ home area-. Centrally-enforced uniformity in certain educational practices has no doubt helped to make this acceptable. But here the plaintiffs do not demand that desegregation take place by means that render school authorities politically irresponsible to the parents of the children they teach. Means are available, such as the consolidation form presented in Virginia law, by which representatives of each political subdivision will have a role in management of a combined school system. Flexible state law provisions for financing exist as well. The State cannot insist that" }, { "docid": "22318976", "title": "", "text": "the laws. Accordingly, we agree with the District Court that closing the Prince Edward schools and meanwhile contributing to the support of the private segregated white schools that took their place denied petitioners the equal protection of the laws. III. We come now to the question of the kind of decree lecessary and appropriate to put an end to the racial discrimination practiced against these petitioners under authority of the Virginia laws. That relief needs to be quick and effective. The parties defendant are the Board of Supervisors, School Board, Treasurer, and Division Superintendent of Schools of Prince Edward County, and the State Board of Education and the State Superintendent of Education. All of these have duties which relate directly or indirectly to the financing, supervision, or operation of the schools in Prince Edward County. The Board of Supervisors has the special responsibility to levy local taxes to operate public schools or to aid children attending the private schools now functioning there for white children. The District Court enjoined the county officials from paying county tuition grants or giving tax exemptions and from processing applications for state tuition grants so long as the county’s public schools remained closed. We have no doubt of the power of the court to give this relief to enforce the discontinuance of the county’s racially discriminatory practices. It has long been established that actions against a county can be maintained in United States courts in order to vindicate federally guaranteed rights. E. g., Lincoln County v. Luning, 133 U. S. 529 (1890); Kennecott Copper Corp. v. State Tax Comm’n, 327 U. S. 573, 579 (1946). The injunction against paying tuition grants and giving tax credits while public schools remain closed is appropriate and necessary since those grants and tax credits have been essential parts of the county’s program, successful thus far, to deprive petitioners of the same advantages of a public school education enjoyed by children in every other part of Virginia. For the same reasons the District Court may, if necessary to prevent further racial discrimination, require the Supervisors to exercise the power that" }, { "docid": "2580795", "title": "", "text": "the tax. The Board would have us regard the tax as a facially neutral imposition on all nondomiciliaries, free of discriminatory taint. But nondomiciliaries have no right to vote in North Carolina. See N.C.Gen. Stat. § 163-55 (1982); Owens v. Chaplin, 228 N.C. 705, 47 S.E.2d 12 (1948); Hall v. Wake County Board of Elections, 280 N.C. 600, 187 S.E.2d 52 (1972). Therefore, no one in the taxed class is capable of resorting to the political processes of North Carolina to oppose the tax, and a Supremacy Clause challenge is the only recourse of the federal employees. Ordinarily, as defendants argue, official motivation in enacting a tax affecting federal employees is irrelevant, and only the discriminatory effect of a tax is considered in a Supremacy Clause analysis. But where the Board seeks to tax a politically impotent class, we believe it appropriate to consider the reasons therefor in determining whether discrimination against federal employees is present. Since political checks are absent, the only reasonable way to protect the rights of federal employees apart from an intent analysis would be per se invalidation of any tax distinctions between residents and non-residents where federal employees are in the non-resident class, and that route would be far harsher for state and local governments. Here, a reading of the preamble to the Board’s tuition resolution affords conclusive evidence of a discriminatory animus directed at the United States and its employees. As the District Court put it below: “The reason the Board believes it cannot offer quality education is because there are too many federally-connected children in the public schools and the school system is receiving too little help from the federal government. The Board’s objective is to recoup revenues lost from federal budget cuts. Although couched in. terms of non-domiciliaries, the Board specifically attempted to recoup federal funds from federally-connected dependents. It is therefore a discriminatory attack against government employees and cannot stand.” V. Given our disposition of the other issues in this case, we, like the District Court, have no occasion to address plaintiffs’ equal protection claim. VI. We do not doubt the" }, { "docid": "7758343", "title": "", "text": "an injunction against State and County officials, it became apparent that it would be necessary that the case be heard in accordance with the statute applicable to cases of this type requiring the calling of •a three-judge court. Such a court convened and the case was set for a hearing on May 28, 1951. The case came on for a trial upon the issues as presented in the complaint and answer. But upon the call of the case, defendants’ counsel announced that they wished to make a statement on behalf of the defendants making certain admissions and praying that the Court make a finding as to inequalities in respect to buildings, equipment, facilities, curricula and other aspects of the schools provided for children in School District 22 in Clarendon County and giving the public authorities time to formulate plans for ending such inequalities. In this statement defendants claim that they never had intended to discriminate against any of the pupils and although they had filed an answer to the complaint, some five months ago, denying inequalities they now admit that they had found some; but rely upon the fact that subsequent to the institution of this suit, James F. Byrnes, the Governor of South Carolina, had stated in his inaugural address that the State must take steps to provide money for improving educational facilities and that thereafter, the Legislature had adopted certain legislation. They stated that they hoped that in time they would obtain money as a result of the foregoing and improve the school situation. This statement was allowed to be filed and considered as an amendment to the answer. By this maneuver, the defendants have endeavored to induce this Court to avoid the primary purpose of the suit. And if the Court should follow this suggestion and fail to meet the issues raised by merely considering this case in the light of another “separate but equal” case, the entire purpose and reason for the institution of the case and the convening of a three-judge court would be voided. The 66 plaintiffs in this cause have brought this suit" }, { "docid": "21468768", "title": "", "text": "Negro' schools as in white schools and the thought of establishing professional contacts does not enter into the picture. Moreover, education at this level is not a matter of voluntary choice on the part of the student but of compulsion by the state. The student is taken from the control of the family during school hours by compulsion of law and placed in control of the school, where he must associate with his fellow students. The law thus provides that the school shall supplement the work of the parent in the training of the child and in doing so it is .entering a delicate field and one fraught with tensions and difficulties. In formulating educational policy at the common school level, therefore, the law must take account, not merely of the matter of affording instruction to the student, but also of the wishes of the parent as to the upbringing of the child and his associates in the formative period of childhood and adolescence. If public education is to have the support of the people through their legislatures, it must not go contrary to what they deem for the best interests of their children.” Plaintiffs here, of course, would reject any argument based upon the problems which have prompted separation provisions in state constitutions and laws. They recognize that separation laws exist, but hold to the view that they ought not to exist where they result in inconveniences to a segregated race. They rely in particular on Corbin v. County School Board of Pulaski County, Virginia, 4 Cir., 177 F.2d 924, and Carter v. School Board of Arlington County, Virginia, 4 Cir., 182 F.2d 531. In the case here, the complaint centers around the requirement that Negro students attend .a Negro high school located in an adjoining county, an arrangement which involves transportation of 19 miles each way. In the Corbin case, where denial of equal protection was found, transportation to a school in another county was a matter complained of, and the court enumerated the matter of transportation as one of the elements of inequality of treatment. But it" }, { "docid": "22318975", "title": "", "text": "District Court invalidated a Louisiana statute which provided “a means by which public schools under desegregation orders may be changed to 'private' schools operated in the same way, in the same buildings, with the same furnishings, with the same money, and under the same supervision as the public schools.” Id., at 651. In addition, that statute also provided that where the public schools were “closed,” the school board was “charged with responsibility for furnishing free lunches, transportation, and grants-in-aid to the children attending the ‘private’ schools.” Ibid. We affirmed the District Court’s judgment invalidating the Louisiana statute as a denial of equal protection. 368 U. S. 515 (1962). While the Louisiana plan and the Virginia plan worked in different ways, it is plain that both were created to accomplish the same thing: the perpetuation of racial segregation by closing public schools and operating only segregated schools supported directly or indirectly by state or county funds. See Cooper v. Aaron, 358 U. S. 1, 17 (1958). Either plan works to deny colored students equal protection of the laws. Accordingly, we agree with the District Court that closing the Prince Edward schools and meanwhile contributing to the support of the private segregated white schools that took their place denied petitioners the equal protection of the laws. III. We come now to the question of the kind of decree lecessary and appropriate to put an end to the racial discrimination practiced against these petitioners under authority of the Virginia laws. That relief needs to be quick and effective. The parties defendant are the Board of Supervisors, School Board, Treasurer, and Division Superintendent of Schools of Prince Edward County, and the State Board of Education and the State Superintendent of Education. All of these have duties which relate directly or indirectly to the financing, supervision, or operation of the schools in Prince Edward County. The Board of Supervisors has the special responsibility to levy local taxes to operate public schools or to aid children attending the private schools now functioning there for white children. The District Court enjoined the county officials from paying county" }, { "docid": "2580796", "title": "", "text": "intent analysis would be per se invalidation of any tax distinctions between residents and non-residents where federal employees are in the non-resident class, and that route would be far harsher for state and local governments. Here, a reading of the preamble to the Board’s tuition resolution affords conclusive evidence of a discriminatory animus directed at the United States and its employees. As the District Court put it below: “The reason the Board believes it cannot offer quality education is because there are too many federally-connected children in the public schools and the school system is receiving too little help from the federal government. The Board’s objective is to recoup revenues lost from federal budget cuts. Although couched in. terms of non-domiciliaries, the Board specifically attempted to recoup federal funds from federally-connected dependents. It is therefore a discriminatory attack against government employees and cannot stand.” V. Given our disposition of the other issues in this case, we, like the District Court, have no occasion to address plaintiffs’ equal protection claim. VI. We do not doubt the Board’s genuine concern over providing a quality education for all school-children in Onslow County. Federally-connected children and their parents in the military, however, have been caught in a political and fiscal crossfire between the federal, state, and local governments, a battle not of their own making. The federal Constitution will not abide this attempt by the Onslow County Board of Education to balance its school budgets at the expense of those, who have undertaken to serve our country in arms. Accordingly, the judgment of the District Court is AFFIRMED. . The separate system of Camp Lejeune Dependent Schools operated seven schools during 1981, and educated 3,952 students whose families resided on-base. . Two of the individual plaintiffs are no longer stationed at Camp Lejeune, and a third has transferred his child out of the Onslow County public schools, but all remain proper plaintiffs, since Onslow County has not waived tuition charges for the already completed 1982-83 school year. . Limited funding is also derived from court fines and forfeitures used for education purposes, and from" }, { "docid": "21936307", "title": "", "text": "flat grant per pupil. If this sum is less than $400, the difference is the equalization grant. Therefore, every district levying the minimum rate is assured of at least $400 per child. On the other hand, if a locality desires to tax itself more heavily than the minimum rate, it is not penalized by having the additional revenue considered before determination of the equalization grant. Since the hypothetical calculation uses the same tax rate for all localities, the assumed revenue per child depends upon the total assessed property value in a district and the number of students. Thus, the equalization grant tends to compensate for variations in property value per pupil from one district to another. Finally, numerous special programs, both state and federal, supply about 10% of the districts’ revenues. This “categorical aid” is allocated for particular purposes such as bus transportation or assistance to handicapped and disadvantaged children. Plaintiffs do not challenge these programs, conceding that they are rationally related to the educational needs of the students. III. The Fourteenth Amendment: Equal Protection and Due Process The underlying rationale of the complaint is that only a financing system which apportions public funds according to the educational needs of the students satisfies the Fourteenth Amendment. Plaintiffs assert that the distribution of school revenues to satisfy these needs should not be limited by such arbitrary factors as variations in local property values or differing tax rates. Clearly, there are wide variations in the amount of money available for Illinois' school districts, both on a per pupil basis and in absolute terms. Presumably, students receiving a $1000 education are better educated that those acquiring a $600 schooling. While the inequalities of the existing arrangement are readily apparent, the crucial question is whether it is unconstitutional. Since nearly three-quarters of the revenue comes from local property taxes, substantially equal revenue distribution would require revamping this method of taxation, with the result that districts with greater property values per student would help support the poorer districts. “The average current expend'tures in 1965 for the East South Central states was 354 dollars per pupil" }, { "docid": "22803966", "title": "", "text": "which each individual in an organized civil community shall contribute to sustain it, or can insure in this respect absolute equality of burthens and fairness in their distribution among those who must bear them ? “We cannot say judicially that the plaintiff received no benefit from the city organization. These streets, if they do not penetrate his farm, lead to it. The waterworks will probably reach him some day, and may be near enough to him now to serve him on some occasion. The schools may receive bis children, and in this regard he can be in no worse condition than those living in the city who have no children, and yet who pay for the support of the schools. Every man in a county, a town, a city or a State is deeply interested in the education of the children of the community, because his peace and quiet, his happiness and prosperity, are largely dependent upon the intelligence and moral training which it is the object of public schools to supply to the children of his neighbors and íásociates, if he has none himself.5’ It is no objection to a tax that the party required to pay it derives no benefit from the particular burthen; e.g. a tax for school purposes levied upon a manufacturing corporation. But, in truth, benefits always flow from the appropriation of public moneys to such purposes, which corporations in common with national persons receive in the additional security to their property and profits. Amesbury Nail Factory Co. v. Weed, 17 Mass. 53. In Cooley on Taxation, 16, the result of a wide examination of the cases is thus stated: “If it were practicable to do so, the taxes levied by any government ought to be apportioned among the people according to the benefit which each receives from the protection the Government affords him ; but this is manifestly impossible. The value of life and liberty, and of the social and family rights and privileges cannot be measured by any pecuniary standard; and by the general consent of civilized nations, income or the sources of" }, { "docid": "10287364", "title": "", "text": "to as the state defendant) are charged with racial discrimination against the plaintiffs and their class in denial of their right of equal protection because of these defendants’ allocation of local and state monies, and federal Impact Aid monies. The local defendants are also charged with having violated the provisions of 20 U.S.C.A. § 241a (hereinafter denominated Title I) and 25 U.S.C.A. § 452 (hereinafter referred to as Johnson-O’Malley) by use of funds obtained thereunder for purposes not authorized by those Acts and their regulations. Also joined as defendants are Elliot Richardson, the Secretary of Health, Education and Welfare, Sidney P. Marland, Commissioner of the United States Office of Education, and Rogers C. B. Morton, Secretary of the Interior (hereinafter referred to as the federal defendants). These defendants and the state defendant are sued for their alleged failure to establish proper review and monitoring procedures for the expenditures of monies received by the Gallup-McKinley County School District under Title I and Johnson-O’Malley. All defendants are sued individually and in their official capacities with regard to all allegations against them. The present case has its genesis in the publication An Even Chance. This pam phlet, denominated “a report on Federal funds for Indian children in public school districts,” was prepared by the N.A.A.C.P. Legal Defense and Educational Fund, Incorporated, with the cooperation of Harvard University’s Center for Law and Education, and was published in January of 1971. An Even Chance is essentially a critique of the spending of federal monies paid to school districts because of the presence of Indian children in such districts. With regard to the Gallup-McKinley County School District, it charges that Indian children receive an inferior and substandard education and that of all the districts surveyed, this district provides the clearest example of inequalities between predominantly Indian and non-Indian schools. Its specific allegations furnish the basis of the plaintiffs’ complaint herein with regard to federal financial assistance programs to the Gallup-McKinley County District. The publication evoked an immediate response from the state, and an on-site investigation was conducted in February of 1971 by staff members of the" }, { "docid": "2580797", "title": "", "text": "Board’s genuine concern over providing a quality education for all school-children in Onslow County. Federally-connected children and their parents in the military, however, have been caught in a political and fiscal crossfire between the federal, state, and local governments, a battle not of their own making. The federal Constitution will not abide this attempt by the Onslow County Board of Education to balance its school budgets at the expense of those, who have undertaken to serve our country in arms. Accordingly, the judgment of the District Court is AFFIRMED. . The separate system of Camp Lejeune Dependent Schools operated seven schools during 1981, and educated 3,952 students whose families resided on-base. . Two of the individual plaintiffs are no longer stationed at Camp Lejeune, and a third has transferred his child out of the Onslow County public schools, but all remain proper plaintiffs, since Onslow County has not waived tuition charges for the already completed 1982-83 school year. . Limited funding is also derived from court fines and forfeitures used for education purposes, and from certain student fees for textbooks and activities. . Only $218,114 of the 1982 payment was actually made available during fiscal year 1982. . WHEREAS, the Onslow County Board of Education desires to continue to provide and maintain a quality educational program to all pupils enrolled in its schools; and, WHEREAS, the Onslow County Board of Commissioners have not appropriated sufficient local funds to meet the budget request by the Board of Education necessary to maintain the existing level of quality education in the schools; and WHEREAS, in the past years, the Onslow County school system has received Federal funding under Public Law 874 to provide educational costs for non-resident military dependent children residing off-base and attending schools in Onslow County; and, WHEREAS, funding under Public Law 874 is no longer available and Congress has failed as of the date of this Resolution to appropriate funding to provide educational costs for non-resident military dependent children; and, WHEREAS, it is anticipated that based upon prior years attendance averages, approximately two thousand non-resident military dependent children will seek" }, { "docid": "9404290", "title": "", "text": "Additionally the Federal Government contributes about two or three percent of public education funds in Florida. Under the Millage Rollback Act, the District and County Millages cannot exceed in the aggregate ten mills, plus the millage necessary to provide district building and bus funds, funds for debt service and funds for junior college support. These latter funds are not involved in, nor are they material to, a determination of this case. Prior to the passage of the Millage Rollback Act, the voters in 24 counties had authorized their School Boards, for the school years 1967-1968 and 1968-1969, to impose District Millage in addition to the ten mills of County Millage which could be imposed by the Board without voter authorization. With the passage of the Act, each of these 24 counties rolled back its millage to the ten mill limit for the 1968-1969 school year to avoid losing state MFP funds. The result was to reduce the amount of money derived from local taxes for educational purposes which counties could raise for themselves. Measured by the reduction in millage from the year before the Act was passed the loss exceeded $50,-000,000.00. See Appendix. The plaintiffs contend that the Millage Rollback Act violates the Equal Protection Clause of the Fourteenth Amendment because the limitation is fixed by reference to a standard which relates solely to the amount of property in the county, not to the educational needs of the county. The plaintiffs argue that the Act promotes no compelling state interest, and is arbitrary and unreasonable because it fails to provide Florida children with an economically equal educational opportunity. The defendants counter by contending that the difference in the dollars available does not necessarily produce a difference in the quality of education; that the relief sought cannot remedy the evil alleged; that the Act does not constitute a blanket prohibition against a county levying additional ad valorem taxes because it may choose to do so and forego its MFP funds; and finally, that on the principle of comity we should abstain from considering the case in deference to a state court" }, { "docid": "9404300", "title": "", "text": "be able “to determine their own tax burden according to the importance which they place upon public schools.” The Florida Act prevents the local Boards from adequately financing their children’s education. The complaint is not that the state permits the Boards to spend less, but that it requires them to spend less. Plaintiffs are asking to be able to raise more money locally. In Mclnnis the plaintiffs wanted the state to give them more. Irrespective of the plaintiffs’ successful attack on the Act, we know that there will continue to be disparities in per pupil expenditures in Florida, either because some counties may not desire to spend as much as other counties on the education of their children, or because, in the poorer counties, they cannot. Plaintiffs do not contest the variations in per pupil expenditures from these causes, but only “the unequal impediment placed on us by the state because we are poor.” We consider this to be a fundamental distinction between the cases. The alternative ground for denying relief in Mclnnis was that reallocation of state funds was sought on the basis of varying educational needs of the individual students. How this was to be achieved was unclear, and the term “educational needs” was found to be a nebulous concept. The court found that, in any event, “educational need” was a judicially unmanageable standard. 293 F.Supp. at 336. In contrast, in the instant case, the plaintiffs’ argument simply stated is that the Equal Protection Clause forbids a state from allocating authority to tax by reference to a formula based on wealth. Unlike the broad relief sought in Mclnnis, the remedy here is simple— an injunction against state officials from taking any action because of a county’s refusal to limit its taxes to ten mills imposed by the Act. We conclude that the problems presented by Mclnnis are not present here. As an epilogue, when this case was before the Court of Appeals, the plaintiffs sought to require various local tax collectors to collect more than $62,-000,000 in back taxes. By amendment before this Court, the only relief sought" } ]

[ { "docid": "5466131", "title": "", "text": "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 substance factor involves a broader examination of ... whether from an objective standpoint the transaction was likely to produce economic benefits aside from a tax deduction.”) (emphasis added). It is clear that transactions whose sole function is to produce tax deductions are substantive shams, regardless of the motive of the taxpayer. See Mahoney, 808 F.2d at 1220 (inquiry is whether transaction has any practical economic effects beyond the creation of tax benefits); Boynton, 649 F.2d at 1172 (transactions that have no economic effect other than creation of tax losses are shams); Tolwinsky v. Commissioner, 86 T.C. 1009, 1037 (1986) (“[wjhere transactions serve no ‘purpose, substance, or utility apart from their anticipated tax consequences’ they are disregarded for tax purposes”); Julien v. Commissioner, 82 T.C. 492 (1984) (interest expenses incurred in silver straddles disallowed under I.R.C. § 162(a) because transactions served no economic purpose beyond generating interest deductions); cf. Frank Lyon Co. v. United States, 435 U.S. 561, 583-84, 98 S.Ct. 1291, 1303-04, 55 L.Ed.2d 550 (1978) (where “there is a ... transaction ... encouraged by" } ]

[ { "docid": "20594039", "title": "", "text": "for determining whether a transaction is a sham: 1) has the taxpayer shown that it had a business purpose for engaging in the transaction other than tax avoidance? 2) has the taxpayer shown that the transaction had economic substance beyond the creation of tax benefits?” Id. at 1363 (citing Bail Bonds by Marvin Nelson, Inc. v. Comm’r, 820 F.2d 1543, 1549 (9th Cir.1987)); see also Sacks, 69 F.3d at 987-88 (considering subjective and objective factors in analyzing whether a transaction was a sham). Similarly, in Reddam v. Commissioner, we applied the “economic substance doctrine,” which likewise focused on two prongs: “the subjective aspect of whether the taxpayer intended to do anything other than acquire tax deductions, and the objective aspect of whether the transaction had any economic substance other than creation of tax benefits.” 755 F.3d 1051, 1059 (9th Cir.2014) (quoting Sacks, 69 F.3d at 987). Finally in Stewart v. Commissioner, we referred to the “substance-over-form doctrine” as part of a well-established body of common law that included consideration of a transaction’s “business purpose” and “economic reality.” 714 F.2d 977, 987-88 (9th Cir.1983). In determining whether to disregard the form of a transaction, we do not conduct a “rigid two-step analysis” applying the subjective and objective factors, but rather focus “holistically on whether the transaction had any practical economic effects other than the creation of income tax losses.” Reddam, 755 F.3d at 1060 (internal quotation marks and emphasis omitted); see also Sacks, 69 F.3d at 987-92 (looking at a transaction as a whole to determine whether it was a sham). If a common sense review of the transaction leads to the conclusion that a particular transaction does not have a non-tax business purpose or “any economic substance other than creation of tax benefits,” Red-dam, 755 F.3d at 1059 (internal quotation mark omitted), the form of that transaction may be disregarded, and the Commissioner may rely on its underlying economic substance for tax purposes. This approach to characterizing a transaction for tax purposes, considering both subjective and objective factors, is also used by other circuits, although they too describe in it" }, { "docid": "13060726", "title": "", "text": "UPS’s sole motivation was tax avoidance. The revenue from the excess-value program was thus properly deemed to be income to UPS rather than to OPL or National Union. The court also imposed penalties. UPS now appeals, attacking the tax court’s economic-substance analysis and its imposition of penalties. The refrain of UPS’s lead argument is that the excess-value plan had economic substance, and thus was not a sham, because it comprised genuine exchanges of reciprocal obligations among real, independent entities. The IRS answers with a before-and-after analysis, pointing out that whatever the reality and enforceability of the contracts that composed the excess-value plan, UPS’s postplan practice equated to its preplan, in that it collected excess-value charges, administered claims, and generated substantial profits. The issue presented to this court, therefore, is whether the excess-value plan had the kind of economic substance that removes it from “sham-hood,” even if the business continued as it had before. The question of the effect of a transaction on tax liability, to the extent it does not concern the accuracy of the tax court’s fact-finding, is subject to de novo review. Kirchman v. Comm’r, 862 F.2d 1486, 1490 (11th Cir.1989); see Karr v. Comm’r, 924 F.2d 1018, 1023 (11th Cir.1991). We agree with UPS that this was not a sham transaction, and we therefore do not reach UPS’s challenges to the tax penalties. II. Discussion I.R.C. §§ 11, 61, and 63 together provide the Code’s foundation by identifying income as the basis of taxation. Even apart from the narrower assignment-of-income doctrine — which we do not address here — these sections come with the gloss, analogous to that on other Code sections, that economic substance determines what is income to a taxpayer and what is not. See Caruth Corp. v. United States, 865 F.2d 644, 650 (5th Cir.1989) (addressing, but rejecting on the case’s facts,-the argument that the donation of an income source to charity was a sham, and that the income should be reattributed to the donor); United States v. Buttorff, 761 F.2d 1056, 1061 (5th Cir.1985) (conveying income to a trust controlled by the income’s" }, { "docid": "13060727", "title": "", "text": "tax court’s fact-finding, is subject to de novo review. Kirchman v. Comm’r, 862 F.2d 1486, 1490 (11th Cir.1989); see Karr v. Comm’r, 924 F.2d 1018, 1023 (11th Cir.1991). We agree with UPS that this was not a sham transaction, and we therefore do not reach UPS’s challenges to the tax penalties. II. Discussion I.R.C. §§ 11, 61, and 63 together provide the Code’s foundation by identifying income as the basis of taxation. Even apart from the narrower assignment-of-income doctrine — which we do not address here — these sections come with the gloss, analogous to that on other Code sections, that economic substance determines what is income to a taxpayer and what is not. See Caruth Corp. v. United States, 865 F.2d 644, 650 (5th Cir.1989) (addressing, but rejecting on the case’s facts,-the argument that the donation of an income source to charity was a sham, and that the income should be reattributed to the donor); United States v. Buttorff, 761 F.2d 1056, 1061 (5th Cir.1985) (conveying income to a trust controlled by the income’s earner has no tax consequence because the assignment is insubstantial); Zmuda v. Comm’r, 731 F.2d 1417, 1421 (9th Cir.1984) (similar). This economic-substance doctrine, also called the sham-transaction doctrine, provides that a transaction ceases to merit tax respect when it has no “economic effects other than the creation of tax benefits.” Kirchman, 862 F.2d at 1492. Even if the transaction has economic effects, it must be disregarded if it has no business purpose and its motive is tax avoidance. See Karr, 924 F.2d at 1023 (noting that subjective intent is not irrelevant, despite Kirchman’s statement of the doctrine); Neely v. United States, 775 F.2d 1092, 1094 (9th Cir.1985); see also Frank Lyon Co. v. United States, 435 U.S. 561, 583-84, 98 S.Ct. 1291, 1303, 55 L.Ed.2d 550 (1978) (one reason requiring treatment of transaction as genuine was that it was “compelled or encouraged by business or regulatory realities”); Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 596 (1935) (reorganization disregarded in part because it had “no business or corporate purpose”). The" }, { "docid": "17564611", "title": "", "text": "expense. The government initially claimed that these partial withdrawals were factual shams but did not include that claim in its post-trial brief. Be that as it may, the court concludes that these withdrawals were real. See C.M. Holdings, 254 B.R. at 618-19. Shdm in substance/economic substance doctrine as applied to the AEP COLI plan as a whole The court will now turn to the question of whether the AEP COLI plan was a sham because it lacked economic substance. The United States Court of Appeals for the Sixth Circuit has described the economic substance test as an inquiry into “whether the transaction has any practicable economic effect other than the creation of income tax losses.” Rose v. Comm’r, 868 F.2d 851, 853 (6th Cir.1989); see also Pasternak v. Comm’r, 990 F.2d 893, 898 (6th Cir.1993); Smith v. Comm’r, 937 F.2d 1089, 1094 (6th Cir.1991); Bryant v. Comm’r, 928 F.2d 745, 748 (6th Cir. 1991). In Rose, the court said, “A taxpayer’s subjective business purpose and the transaction’s objective economic substance may be relevant to this inquiry.” Rose, 868 F.2d at 853. Thus, in determining whether the questioned transaction has economic substance, the court should look to both the taxpayer’s subjective business purpose and the transaction’s objective economic substance. It appears that the standard in the Sixth Circuit is consistent with the standard adopted in other circuits, including the standard enunciated by the Third Circuit in ACM Partnership. There, the court stated: The inquiry into whether the taxpayer’s transactions had sufficient economic substance to be respected for tax purposes ■ turns on both the “objective economic substance of the transactions” and the “subjective business motivation” behind them. However, these distinct aspects of the economic sham inquiry do not constitute discrete prongs of a “rigid two-step analysis,” but rather represent related factors both of which inform the analysis of whether the transaction had sufficient substance, apart from its tax consequences, to be respected for' tax purposes. 157 F.3d at 247 (citations omitted). In discussing the objective aspect of the economic sham analysis, the ACM court noted that “the courts have examined ‘whether" }, { "docid": "15489690", "title": "", "text": "a profit exists.” Rice’s Toyota World, 752 F.2d at 91 (emphasis added); see also Black & Decker, 436 F.3d at 441 (same). Thus, under the Fourth Circuit’s formulation, a transaction will be disregarded as a sham only if both a sole subjective motivation of tax avoidance is shown and the transaction objectively lacks economic substance. Plaintiffs also cite the Federal Circuit’s unpublished table decision in Drobny v. United States, 86 F.3d 1174, at *1 (Fed.Cir.1996) (unpubl.), which quoted with approval the conjunctive test set forth in Rice’s Toyota World. Although in Coltec the Federal Circuit did not address Drobny, an unpublished decision, the court was unequivocal in addressing the role of a subjective component in the Supreme Court’s economic substance doctrine: ‘We think that the rule adopted by the Fourth Circuit and reiterated in Black & Decker—that a transaction will be disregarded only if it both lacks economic substance and is motivated solely by tax avoidance—is not consistent with the Supreme Court’s pronouncements in cases such as Frank Lyon [Co. v. United States, 435 U.S. 561, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978)].” Coltec, 454 F.3d at 1355 n. 14. The Federal Circuit stated: “While the [economic substance] doctrine may well also apply if the taxpayer’s sole subjective motivation is tax avoidance even if the transaction has economic substance, a lack of economic substance is sufficient to disqualify the transaction without proof that the taxpayer’s sole motive is tax avoidance.” Id. at 1355 (footnote omitted). The Federal Circuit thus adopted a disjunctive test for determining whether a transaction should be disregarded as an economic sham: the doctrine should apply and a transaction should be disregarded either if the transaction lacks objective economic substance or if it is subjectively shaped solely by tax avoidance motivations. Accord United Parcel Serv. of Am., 254 F.3d at 1018 & n. 2 (disagreeing with Rice’s Toyota World and endorsing disjunctive test for economic substance that disregards transaction “when it has no economic effects other than the creation of tax benefits,” or when “it has no business purpose and its motive is tax avoidance” (internal quotation" }, { "docid": "15489691", "title": "", "text": "561, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978)].” Coltec, 454 F.3d at 1355 n. 14. The Federal Circuit stated: “While the [economic substance] doctrine may well also apply if the taxpayer’s sole subjective motivation is tax avoidance even if the transaction has economic substance, a lack of economic substance is sufficient to disqualify the transaction without proof that the taxpayer’s sole motive is tax avoidance.” Id. at 1355 (footnote omitted). The Federal Circuit thus adopted a disjunctive test for determining whether a transaction should be disregarded as an economic sham: the doctrine should apply and a transaction should be disregarded either if the transaction lacks objective economic substance or if it is subjectively shaped solely by tax avoidance motivations. Accord United Parcel Serv. of Am., 254 F.3d at 1018 & n. 2 (disagreeing with Rice’s Toyota World and endorsing disjunctive test for economic substance that disregards transaction “when it has no economic effects other than the creation of tax benefits,” or when “it has no business purpose and its motive is tax avoidance” (internal quotation marks omitted)); James v. Comm’r, 899 F.2d 905, 908-10 (10th Cir.1990) (rejecting Fourth Circuit’s conjunctive formulation and holding that “[t]he 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 economic effects other than the creation of income tax losses.’ ” (second alteration in original) (quoting Sochin v. Comm’r, 843 F.2d 351, 354 (9th Cir.1988))); Sochin, 843 F.2d at 354 (clarifying that disjunctive test that considers both subjective and objective factors, rather than “rigid two-step analysis,” is correct standard for economic substance doctrine), rev’d on other grounds, Keane v. Comm’r, 865 F.2d 1088 (9th Cir.1989); see also H.J. Heinz Co. & Subsidiaries v. United States, 76 Fed.Cl. 570, 583-84 & n. 26 (2007). Beyond its status as binding precedent in this circuit, the Federal Circuit’s disjunctive approach reflects the more flexible and considered approach to the Supreme Court’s economic substance doctrine as set forth in Frank Lyon. Accord H.J. Heinz, 76 Fed.Cl. at" }, { "docid": "17564612", "title": "", "text": "inquiry.” Rose, 868 F.2d at 853. Thus, in determining whether the questioned transaction has economic substance, the court should look to both the taxpayer’s subjective business purpose and the transaction’s objective economic substance. It appears that the standard in the Sixth Circuit is consistent with the standard adopted in other circuits, including the standard enunciated by the Third Circuit in ACM Partnership. There, the court stated: The inquiry into whether the taxpayer’s transactions had sufficient economic substance to be respected for tax purposes ■ turns on both the “objective economic substance of the transactions” and the “subjective business motivation” behind them. However, these distinct aspects of the economic sham inquiry do not constitute discrete prongs of a “rigid two-step analysis,” but rather represent related factors both of which inform the analysis of whether the transaction had sufficient substance, apart from its tax consequences, to be respected for' tax purposes. 157 F.3d at 247 (citations omitted). In discussing the objective aspect of the economic sham analysis, the ACM court noted that “the courts have examined ‘whether the transaction has any practical economic effects other than the creation of income tax losses[.]’ ” Id. at 248 (quoting Jacobson v. Comm’r, 915 F.2d 832, 837 (2d Cir.1990)). The court went on to state that courts: have refused to recognize the tax consequences of transactions that were devoid of “non-tax substance” because they “did not appreciably affect [the taxpayer’s] beneficial interest except to reduce his tax.” Id. (quoting Knetsch v. United States, 364 U.S. 361, 366, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960)). AEP argues that in determining whether its COLI plan had objective economic substance, i.e., whether it had any practicable economic effects other than the creation of income tax losses, the court should not consider the economic consequences of the transaction on a pretax basis since, unlike most other investments, life insurance has a built in tax preference in the deferral of taxation of inside buildup. It is clear from the evidence, however, that the COLI plan was marketed by MBL and its brokers and purchased by AEP with a primary focus" }, { "docid": "19008992", "title": "", "text": "both that the transaction had a reasonable possibility of profit (the so-called “objective” economic substance test) and the taxpayer was motivated to enter into the transaction for a legitimate non-tax business purpose (the so-called “subjective” test). “[Wjhen applying the economic substance doctrine, the proper focus is on the particular transaction that gives rise to the tax benefit, not collateral transactions that do not produce tax benefits.” Id. at 545. Thus, “transactions, which do not vary control or change the flow of economic benefits, are to be dismissed from consideration.” Higgins v. Smith, 308 U.S. 473, 476, 60 S.Ct. 355, 84 L.Ed. 406 (1940). Yet in applying these principles, a court must view the transactions “as a whole, and each step, from the commencement ... to the consummation ... is relevant.” Weller v. Comm’r, 270 F.2d 294, 297 (3d Cir.1959); accord Comm’r v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 89 L.Ed. 981 (1945). Courts should not “reward a ‘head in the sand’ defense where taxpayers can profess a profit motive but agree to a scheme structured and controlled by parties with the sole purpose of achieving tax benefits for them.” Klamath, 568 F.3d at 544-45 (adopting the majority view “that a lack of economic substance is sufficient to invalidate the transaction regardless of whether the taxpayer has motives other than tax avoidance”) (citing Coltec, 454 F.3d at 1355; United Parcel Serv. of Am., Inc. v. Comm’r, 254 F.3d 1014, 1018 (11th Cir. 2001); ACM Partnership v. Comm’r, 157 F.3d 231, 247 (3d Cir.1998); James v. Comm’r, 899 F.2d 905, 908-09 (10th Cir. 1990)). The profit motive of a partnership is determined at the partnership level. Klamath, 568 F.3d at 550. The Government alleges that the South-gate transaction lacked any reasonable expectation of profit and instead was established to shelter more than $1 billion of Beal’s ordinary income. “In reality, all Beal did was purchase an essentially worthless portfolio of loans for $19 million and that is how the transaction should be taxed.” Gov’t Br. 18. This alleged abu sive tax scheme was designed only to give Beal" }, { "docid": "17810513", "title": "", "text": "P’ship v. United States, 314 F.3d 625, 631 (D.C.Cir.2003); In re CM Holdings, Inc., 301 F.3d 96, 102 (3d Cir.2002); United Parcel Serv. of Am., Inc. v. Comm’r of Internal Revenue, 254 F.3d 1014, 1018 (11th Cir.2001). While the doctrine may well also apply if the taxpayer’s sole subjective motivation is tax avoidance even if the transaction has economic substance, a lack of economic substance is sufficient to disqualify the transaction without proof that the taxpayer’s sole motive is tax avoidance. Second, when the taxpayer claims a deduction, it is the taxpayer who bears the burden of proving that the transaction has economic substance. In describing the history of the economic substance doctrine, our predecessor court in Rothschild stated, “Gregory v. Helvering requires that a taxpayer carry an unusually heavy burden when he attempts to demonstrate that Congress intended to give favorable tax treatment to the kind of transaction that would never occur absent the motive of tax avoidance.” 407 F.2d at 411 (quoting Diggs v. Comm’r of Internal Revenue, 281 F.2d 326, 330 (2d Cir.1960)). Other circuits have similarly held that “[ejconomic substance is a prerequisite to the application of any Code provision allowing deductions [and therefore that] ... [t]he taxpayer has the burden of showing that the form of the transaction accurately reflects its substance, and the deductions are permissible.” In re CM Holdings, Inc., 301 F.3d at 102. Third, the economic substance of a transaction must be viewed objectively rather than subjectively. The Supreme Court cases and our predecessor court’s cases have repeatedly looked to the objective economic reality of the transaction in applying the economic substance doctrine. While the taxpayer’s subjective motivation may be pertinent to the existence of a tax avoidance purpose, all courts have looked to the objective reality of the transaction is assessing its economic substance. See, e.g., Black & Decker, 436 F.3d at 441-42 (noting that economic substance inquiry requires an “objective determination of whether a reasonable possibility of profit from the transaction existed”) (internal quotation marks omitted, first two emphases added); Dow Chem. Co., 435 F.3d at 599; In re CM" }, { "docid": "23625312", "title": "", "text": "before this court is whether the transactions implementing the J & G strategy were properly disregarded under the economic substance doctrine. We conclude that they were. How a transaction is characterized is a question of law we review de novo. Accordingly, we review the trial court’s application of the economic substance doctrine without deference. Coltec Industries, Inc. v. U.S., 454 F.3d 1340, 1357 (Fed.Cir.2006). The trial court’s underlying factual findings are reviewed for clear error. Jade Trading, LLC ex rel. Ervin v. United States, 598 F.3d 1372, 1376 (Fed.Cir.2010). Because deductions are a matter of legislative grace, the taxpayer has the burden of proving that a transaction had economic substance by a preponderance of evidence. Id. The economic substance doctrine seeks to distinguish between structuring a real transaction in a particular way to obtain a tax benefit, which is legitimate, and creating a transaction to generate a tax benefit, which is illegitimate. Coltec, 454 F.3d at 1357; see also Klamath Strategic Invest. Fund ex rel. St. Croix v. United States, 568 F.3d 537, 543-44 (5th Cir.2009). Under this doctrine, we disregard the tax consequences of transactions that comply with the literal terms of the tax code, but nonetheless lack “economic reality.” Coltec, 454 F.3d at 1355-56; see also Frank Lyon Co. v. United States, 435 U.S. 561, 583-84, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978); Klamath, 568 F.3d at 544; United Parcel Serv. of Am., Inc. v. Comm’r, 254 F.3d 1014, 1018 (11th Cir.2001); ACM P’ship v. Comm’r, 157 F.3d 231, 247 (3d Cir.1998); James v. Comm’r, 899 F.2d 905, 908-09 (10th Cir.1990). Such transactions include those that have no business purpose beyond reducing or avoiding taxes, regardless of whether the taxpayer’s subjective motivation was tax avoidance. Coltec, 454 F.3d at 1355 (citing Higgins v. Smith, 308 U.S. 473, 476, 60 S.Ct. 355, 84 L.Ed. 406 (1940)); Ballagh v. United States, 331 F.2d 874, 877-78 (Ct.Cl.1964); see also Frank Lyon, 435 U.S. at 583-84, 98 S.Ct. 1291; Klamath, 568 F.3d at 544. We also disregard transactions shaped solely by tax-avoidance features. Frank Lyon, 435 U.S. at 583-84, 98 S.Ct. 1291;" }, { "docid": "19008993", "title": "", "text": "to a scheme structured and controlled by parties with the sole purpose of achieving tax benefits for them.” Klamath, 568 F.3d at 544-45 (adopting the majority view “that a lack of economic substance is sufficient to invalidate the transaction regardless of whether the taxpayer has motives other than tax avoidance”) (citing Coltec, 454 F.3d at 1355; United Parcel Serv. of Am., Inc. v. Comm’r, 254 F.3d 1014, 1018 (11th Cir. 2001); ACM Partnership v. Comm’r, 157 F.3d 231, 247 (3d Cir.1998); James v. Comm’r, 899 F.2d 905, 908-09 (10th Cir. 1990)). The profit motive of a partnership is determined at the partnership level. Klamath, 568 F.3d at 550. The Government alleges that the South-gate transaction lacked any reasonable expectation of profit and instead was established to shelter more than $1 billion of Beal’s ordinary income. “In reality, all Beal did was purchase an essentially worthless portfolio of loans for $19 million and that is how the transaction should be taxed.” Gov’t Br. 18. This alleged abu sive tax scheme was designed only to give Beal a 50:1 tax write-off, the Government contends. Plaintiff responds that Southgate was a genuine business deal entered into by experienced investors seeking a profit, as they had in past deals. Plaintiff presented substantial evidence that “nuggets” of value found within a pool of NPLs can be enough to generate profit if the price paid for the NPLs is sufficiently low. Plaintiff cites the Zhongyu valuation report for the proposition that the NPLs’ value was between $45 million and $112 million. Plaintiff further contends that the Government, by conceding in its arguments regarding the valuation misstatement penalties that at least some of Southgate’s losses are deductible, necessarily concedes that the transactions at issue had economic substance. It is apparent to the Court that the transaction in question here must be divided for purposes of economic substance analysis. The first step requires the Court to examine the economic substance of the partnership between Cinda, MCA, and Beal in the Southgate LLC acquisition of the Chinese NPLs. The second, underlying transaction — the one that built Beal’s basis" }, { "docid": "22237577", "title": "", "text": "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.” Id. at 583-84, 98 S.Ct. 1291. Subsequent case law developed two predominant tests for identifying a sham transaction. In Rice’s Toyota World, Inc. v. Commissioner, 752 F.2d 89 (4th Cir.1985), the Fourth Circuit adopted a two-prong standard, stating that “[t]o treat a transaction as a sham, the court must find that the taxpayer was motivated by no business purposes other than obtaining tax benefits in entering the transaction, and that the transaction has no economic substance because no reasonable possibility of a profit exists.” Id. at 91. The business purpose prong inquires into the taxpayer’s subjective motive for entering the transaction. Id. at 92. The economic-substance prong “requires an objective determination of whether a reasonable possibility of profit from the transaction existed apart from the tax benefits.” Id. at 94. The other test, adopted by a majority of the circuits, states that “the[ ] distinct aspects of the economic sham theory inquiry do not constitute discrete prongs of a rigid two-step analysis, but rather represent related factors both of which inform the analysis of whether the transaction had sufficient substance, apart from its tax consequences, to be respected for tax purposes.” ACM P’ship v. Comm’r of Internal Revenue, 157 F.3d 231, 247 (3d Cir.1998), cert. denied, 526 U.S. 1017, 119 S.Ct. 1251, 143 L.Ed.2d 348 (1999); see also Sochin v. Comm’r of Internal Revenue, 843 F.2d 351, 354 (9th Cir.1988), cert. denied, 488 U.S. 824, 109 S.Ct. 72, 102 L.Ed.2d 49 (1988); Rose v. Comm’r of Internal Revenue, 868 F.2d 851, 854 (6th Cir.1989); James v. Comm’r of Internal Revenue, 899 F.2d 905, 908-09 (10th Cir.1990); Winn-Dixie Stores, Inc. v. Comm’r of Internal Revenue, 254 F.3d 1313, 1316 (11th Cir.2001). “The sham transaction doctrine has few bright lines, but ‘[i]t is clear that transactions whose sole function is to produce tax deductions are substantive shams.’ ” Winn-Dixie Stores, 254" }, { "docid": "13060728", "title": "", "text": "earner has no tax consequence because the assignment is insubstantial); Zmuda v. Comm’r, 731 F.2d 1417, 1421 (9th Cir.1984) (similar). This economic-substance doctrine, also called the sham-transaction doctrine, provides that a transaction ceases to merit tax respect when it has no “economic effects other than the creation of tax benefits.” Kirchman, 862 F.2d at 1492. Even if the transaction has economic effects, it must be disregarded if it has no business purpose and its motive is tax avoidance. See Karr, 924 F.2d at 1023 (noting that subjective intent is not irrelevant, despite Kirchman’s statement of the doctrine); Neely v. United States, 775 F.2d 1092, 1094 (9th Cir.1985); see also Frank Lyon Co. v. United States, 435 U.S. 561, 583-84, 98 S.Ct. 1291, 1303, 55 L.Ed.2d 550 (1978) (one reason requiring treatment of transaction as genuine was that it was “compelled or encouraged by business or regulatory realities”); Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 596 (1935) (reorganization disregarded in part because it had “no business or corporate purpose”). The kind of “economic effects” required to entitle a transaction to respect in taxation include the creation of genuine obligations enforceable by an unrelated party. See Frank Lyon Co., 435 U.S. at 582-83, 98 S.Ct. at 1303 (refusing to deem a sale-leaseback a sham in part because the lessor had accepted a real, enforceable debt to an unrelated bank as part of the deal). The restructuring of UPS’s excess-value business generated just such obligations. There was a real insurance policy between UPS and National Union that gave National Union the right to receive the excess-value charges that UPS collected. And even if the odds of losing money on the policy were slim, National Union had assumed liability for the losses of UPS’s excess-value shippers, again a genuine obligation. A history of not losing money on a policy is no guarantee of such a future. Insurance companies indeed do not make a habit of issuing policies whose premiums do not exceed the claims anticipated, but that fact does not imply that insurance -companies do not bear risk." }, { "docid": "17810512", "title": "", "text": "of stocks as falling outside the tax code because the transfers had “no business or corporate purpose” and performed no “function” other than to reduce taxes. 293 U.S. at 469, 55 S.Ct. 266. The Supreme Court later explained that “[if] ... the Gregory case is viewed as a precedent for the disregard of a transfer of assets without a business purpose ... it gives support to the natural conclusion that transactions, which do not vary control or change the flow of economic benefits, are to be dismissed from consideration.” Higgins v. Smith, 308 U.S. 473, 476, 60 S.Ct. 355, 84 L.Ed. 406 (1940) (emphasis added). Our court and our predecessor court have followed a similar approach. See Terry Haggerty Tire Co., 899 F.2d at 1201 n. 2; Holiday Vill. Shopping Ctr., 773 F.2d at 280; Basic Inc., 549 F.2d at 745-46; Rothschild, 407 F.2d at 417; Ballagh, 331 F.2d at 875-76. Several other courts of appeals have adopted similar positions. See Dow Chem. Co. v. United States, 435 F.3d 594, 599 (6th Cir.2006); Boca Investerings P’ship v. United States, 314 F.3d 625, 631 (D.C.Cir.2003); In re CM Holdings, Inc., 301 F.3d 96, 102 (3d Cir.2002); United Parcel Serv. of Am., Inc. v. Comm’r of Internal Revenue, 254 F.3d 1014, 1018 (11th Cir.2001). While the doctrine may well also apply if the taxpayer’s sole subjective motivation is tax avoidance even if the transaction has economic substance, a lack of economic substance is sufficient to disqualify the transaction without proof that the taxpayer’s sole motive is tax avoidance. Second, when the taxpayer claims a deduction, it is the taxpayer who bears the burden of proving that the transaction has economic substance. In describing the history of the economic substance doctrine, our predecessor court in Rothschild stated, “Gregory v. Helvering requires that a taxpayer carry an unusually heavy burden when he attempts to demonstrate that Congress intended to give favorable tax treatment to the kind of transaction that would never occur absent the motive of tax avoidance.” 407 F.2d at 411 (quoting Diggs v. Comm’r of Internal Revenue, 281 F.2d 326, 330 (2d" }, { "docid": "18339299", "title": "", "text": "more difficult nut to crack. In fact, ease law has developed two differing “tests” for identifying shams. The Fourth Circuit has adopted a two-prong standard providing that “[t] o treat a transaction as a sham, the court must find that the taxpayer was motivated by no business purposes other than obtaining tax benefits ... and that the transaction has no economic substance because no reasonable possibility of a profit exists.” Rice’s Toyota World Inc. v. Comm’r of Internal Revenue, 752 F.2d 89, 91 (4th Cir.1985). Notwithstanding, a majority of the circuits follow a more flexible test developed by the Ninth Circuit, whereby “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 economic effects other than the creation of income tax losses.” Sochin v. Comm’r of Internal Revenue, 843 F.2d 351, 354 (9th Cir.1988); see also Winn-Dixie Stores, Inc. v. Comm’r of Internal Revenue, 254 F.3d 1313, 1316 (11th Cir.2001); True v. United States, 190 F.3d 1165, 1177 n. 11 (10th Cir.1999); ACM P’ship v. Comm’r of Internal Revenue, 157 F.3d 231, 247 (3d Cir. 1998); DeMartino v. Comm’r of Internal Revenue, 862 F.2d 400, 406 (2d Cir.1988); Rose v. Comm’r of Internal Revenue, 868 F.2d 851, 854 (6th Cir.1989). What is paramount, however, is that when determining sham or fraudulent transactions, under either of the two tests, courts have concluded that the determination must be done on the partnership level. See Transpac Drilling Venture, 1983-2 by Dobbins v. United States, 32 Fed.Cl. 810, 820 (1995), aff'd, 83 F.3d 1410 (Fed.Cir.1996); Nault v. United States, 2007 WL 465310 at *4-*5 (D.N.H. Feb.9, 2007); see also Keener, 76 Fed.Cl. at 468. This is because “[t]he focus is on the partnership’s motivation for entering into the relevant business transaction, ‘not on an individual partner’s motive for joining the partnership.’ ” Keener, 76 Fed.Cl. at 468 (citing Tallal v. Comm’r of Internal Revenue, 778 F.2d 275, 276 (5th Cir.1985)) (emphasis added). This unanimity, however, breaks down on the issue of whether the imposition of interest under § 6621(e)" }, { "docid": "20594038", "title": "", "text": "156, 168, 42 S.Ct. 63, 66 L.Ed. 180 (1921), because “[t]he incidence of taxation depends upon the substance of a transaction,” Comm’r v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 89 L.Ed. 981 (1945). In explaining the factors that should guide a court’s analysis regarding when it is appropriate to disregard the form of a transaction, the Supreme Court framed the inquiry as whether “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.” Frank Lyon Co. v. United States, 435 U.S. 561, 583-84, 98 S.Ct. 1291, 55 L.Ed.2d 550 (1978). We have interpreted Frank Lyon as requiring courts to consider both subjective and objective factors in characterizing a transaction for tax purposes. See Casebeer v. Comm’r, 909 F.2d 1360, 1362-63 (9th Cir.1990). We have used different terminology from time to time, but consistently apply the same approach. In Case-beer, we applied “a two-part test for determining whether a transaction is a sham: 1) has the taxpayer shown that it had a business purpose for engaging in the transaction other than tax avoidance? 2) has the taxpayer shown that the transaction had economic substance beyond the creation of tax benefits?” Id. at 1363 (citing Bail Bonds by Marvin Nelson, Inc. v. Comm’r, 820 F.2d 1543, 1549 (9th Cir.1987)); see also Sacks, 69 F.3d at 987-88 (considering subjective and objective factors in analyzing whether a transaction was a sham). Similarly, in Reddam v. Commissioner, we applied the “economic substance doctrine,” which likewise focused on two prongs: “the subjective aspect of whether the taxpayer intended to do anything other than acquire tax deductions, and the objective aspect of whether the transaction had any economic substance other than creation of tax benefits.” 755 F.3d 1051, 1059 (9th Cir.2014) (quoting Sacks, 69 F.3d at 987). Finally in Stewart v. Commissioner, we referred to the “substance-over-form doctrine” as part of a well-established body of common law that included consideration of a transaction’s “business purpose” and" }, { "docid": "20594040", "title": "", "text": "“economic reality.” 714 F.2d 977, 987-88 (9th Cir.1983). In determining whether to disregard the form of a transaction, we do not conduct a “rigid two-step analysis” applying the subjective and objective factors, but rather focus “holistically on whether the transaction had any practical economic effects other than the creation of income tax losses.” Reddam, 755 F.3d at 1060 (internal quotation marks and emphasis omitted); see also Sacks, 69 F.3d at 987-92 (looking at a transaction as a whole to determine whether it was a sham). If a common sense review of the transaction leads to the conclusion that a particular transaction does not have a non-tax business purpose or “any economic substance other than creation of tax benefits,” Red-dam, 755 F.3d at 1059 (internal quotation mark omitted), the form of that transaction may be disregarded, and the Commissioner may rely on its underlying economic substance for tax purposes. This approach to characterizing a transaction for tax purposes, considering both subjective and objective factors, is also used by other circuits, although they too describe in it varying ways. See, e.g., Feldman v. Comm’r, 779 F.3d 448, 454 (7th Cir.2015) (noting that the “animating principle” of each of “several related, overlapping doctrines used in tax eases,” including “the ‘substance over form’ doctrine, the ‘business purpose’ doctrine, [and] the ‘economic substance’ doctrine,” is that “the law looks beyond the form of a transaction to discern its substance”). As Feldman noted, “[t]he distinctions between these doctrines are subtle, if they exist at all.” Id. at 454 n. 6; see also Bittker and Lokken, Federal Taxation of Income, Estates and Gifts ¶ 4.3.4A (3d ed. Supp.2014) (noting that the substance over form doctrine, the business purpose doctrine, the economic substance doctrine, and the sham transaction doctrine have tended to coalesce in the case law). Congress has codified a similar approach considering subjective and objective factors. We conclude that this approach is applicable for determining whether a taxpayer is a transferee for purposes of § 6901. Accordingly, when the Commissioner claims a taxpayer was “the shareholder of a dissolved corporation” for purposes of 26 C.F.R. §" }, { "docid": "14681719", "title": "", "text": "6901. See generally 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.”); Va. Historic Tax Credit Fund 2001 LP v. Comm’r of Internal Revenue, 639 F.3d 129, 142 (4th Cir.2011) (same). A. To answer that initial question, I look to this Court’s precedent: A taxpayer may not ... claim tax benefits that Congress did not intend to confer by setting up a sham transaction lacking any legitimate business purpose, or by affixing labels to its transactions that do not accurately reflect their true nature. Accordingly, under the “economic substance doctrine,” a transaction may be disregarded as a sham for tax purposes if the taxpayer “was motivated by no business purposes other than obtaining tax benefits” and “the transaction has no economic substance because no reasonable possibility of a profit exists.” Rice’s Toyota World, Inc. v. Comm’r, 752 F.2d 89, 91 (4th Cir.1985). Similarly, the doctrine of “substance over form” recognizes that the substance of a transaction, rather than its form, governs for tax purposes. See, e.g., W. Va. N. R.R. Co. v. Comm’r, 282 F.2d 63, 65 (4th Cir.1960) (“It is well settled that in matters of taxation substance rather than form prevails and that the taxability of a transaction is determined by its true nature rather than by the name which the parties may use in describing it.”). BB&T Corp. v. United States, 523 F.3d 461, 471 (4th Cir.2008). We have further instructed that “[i]n applying the doctrine of substance over form, we ‘look to the objective economic realities of a transaction rather than to the particular form the parties employed.’” Id. at 472 (quoting Frank Lyon, 435 U.S. at 573, 98 S.Ct. 1291 (alteration omitted)). Here, the “objective economic realities” establish that the former shareholders effectively wound up Tarcon and received liquidating distributions of its cash as a result of the stock sale to MidCoast. As noted in the Tax Court’s Memorandum, it is undisputed that “[b]y 2003, Tarcon was no" }, { "docid": "13060736", "title": "", "text": "did not, however, reach the IRS’s alternative arguments in support of its determination of deficiency, the reallocation provisions of I.R.C. §§ 482 and 845(a). The holding here does not dispose of those arguments, and we therefore must remand for the tax court to address them in the first instance. III. Conclusion For the foregoing reasons, we reverse the judgment against UPS and remand the action to the tax court for it to address in the first instance the IRS’s contentions under §§ 482 and 845(a). REVERSED AND REMANDED. . These facts synopsize the high points of the tax court's long opinion, which is published at 78 T.C.M. (CCH) 262, 1999 WL 592696. . Kirchman, which is binding in this circuit, differs in this respect from the oft-used statement of the doctrine derived from Rice's Toyota World, Inc. v. Comm’r, 752 F.2d 89, 91-92 (4th Cir.1985). Rice's Toyota World, unlike Kirchman, requires a tax-avoidance purpose as well as a lack of substance; Kirchman explicitly refuses to examine subjective intent if the transaction lacks economic effects. RYSKAMP, District Judge, dissenting: I respectfully dissent. Although I agree with the majority’s recitation of the facts as well as its interpretation of the applicable legal standard, I find that its reversal of the tax court is contrary to the great weight of the evidence that was before the lower court. The majority, as well as the tax court below, correctly finds that the question before the Court is whether UPS’s insurance arrangements with NUF and OPL are valid under the sham-transaction doctrine. Under the sham-transaction doctrine, UPS’s transaction ceases to merit tax respect when it has no “economic effects other than the creation of tax benefits,” Kirchman v. Comm’r, 862 F.2d 1486, 1492 (11th Cir.1989), or has no business purpose and its sole motive is tax avoidance. See Karr v. Comm’r, 924 F.2d 1018, 1023 (11th Cir.1991). Thus the question before the Court is not strictly whether UPS had a tax avoidance motive when it formulated the scheme in question, but rather whether there was some legitimate, substantive business reason for the transaction as well." }, { "docid": "18339298", "title": "", "text": "individual partner who is the “taxpayer” to whom these “at risk” rules apply, since partnerships do not qualify as taxpayers for purposes of the Code. Nevertheless, courts addressing the matter “must often consider not only what the partner contributed to the partnership, but the nature of the obligations flowing among the partner, the partnership, and, at times, third-parties.” Keener, 76 Fed.Cl. at 467. Thus, “several cases directly involving the ‘at risk’ provisions have concluded that their application is not a ‘nonpartnership item,’ but rather an affected item.” Id. (citing Ginsburg v. Comm’r of Internal Revenue, 127 T.C. 75, 92-93, 2006 WL 2506573 (2006); Greenberg Bros. P’ship # 4 v. Comm’r of Internal Revenue, 111 T.C. 198, 202, 1998 WL 525708 (1998); Hambrose Leasing 1984-5 Ltd. P’ship v. Comm’r of Internal Revenue, 99 T.C. 298, 312-13, 1992 WL 210580 (1992); Roberts v. Comm’r of Internal Revenue, 94 T.C. 853, 861, 1990 WL 77203 (1990)) The “sham or fraudulent transaction” prohibition prong of 26 U.S.C. § 6221(c)(3), the prong at issue in the instant case, is a more difficult nut to crack. In fact, ease law has developed two differing “tests” for identifying shams. The Fourth Circuit has adopted a two-prong standard providing that “[t] o treat a transaction as a sham, the court must find that the taxpayer was motivated by no business purposes other than obtaining tax benefits ... and that the transaction has no economic substance because no reasonable possibility of a profit exists.” Rice’s Toyota World Inc. v. Comm’r of Internal Revenue, 752 F.2d 89, 91 (4th Cir.1985). Notwithstanding, a majority of the circuits follow a more flexible test developed by the Ninth Circuit, whereby “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 economic effects other than the creation of income tax losses.” Sochin v. Comm’r of Internal Revenue, 843 F.2d 351, 354 (9th Cir.1988); see also Winn-Dixie Stores, Inc. v. Comm’r of Internal Revenue, 254 F.3d 1313, 1316 (11th Cir.2001); True v. United States, 190 F.3d 1165, 1177 n. 11" } ]

[ { "docid": "23147226", "title": "", "text": "v. Edwards, 770 F.2d 739, 740-42 (8th Cir.1985) (strip/body cavity search of arrestee who refused to sign summons and allegedly resisted arrest unconstitutional); Stewart v. Lubbock County, 767 F.2d 153, 155-57 (5th Cir.1985) (reasonable suspicion standard did not justify strip searches of persons arrested for misdemeanors punishable only by fine), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles, 746 F.2d at 617 (authorities must have reasonable individualized suspicion of concealment of contraband to strip search arrestees of traffic or of other minor violations); Hill, 735 F.2d at 393-95 (strip search of traffic offender unconstitutional where no reasonable suspicion that offender might have been concealing contraband); Mary Beth G., 723 F.2d at 1263 (policy calling for strip/body cavity searches of women arrested for misdemeanor offenses unconstitutional); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981) (strip search of DWI arrestee unconstitutional), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). Courts invalidating strip search policies as applied to traffic and other non-violent offenders have generally held that in order to strip search such arrestees, the arresting officers must have reasonable individualized suspicion that an arrestee is carrying or concealing contraband. See e.g., Giles, 746 F.2d at 617; Weber, 804 F.2d at 802; Mary Beth G., 723 F.2d at 1273. Individualized suspicion sufficient to warrant a strip search of such detainees may be based on such factors as “the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest record.” Giles, 746 F.2d at 617; see also Weber, 804 F.2d at 802. The Sixth Circuit has, in contrast, upheld the strip search of an arrestee charged with the misdemeanor offense of menacing, Dobrowolskyj v. Jefferson County, 823 F.2d 955, 957-59 (6th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1012, 98 L.Ed.2d 978 (1988), and felonious assault, Dufrin v. Spreen, 712 F.2d 1084, 1089 (6th Cir.1983), based primarily on the fact that the charged offenses were sufficiently associated with violence and contraband and that the arrestees would be intermingled with the general jail population. See also Masters v. Crouch, 872 F.2d" } ]

[ { "docid": "14847217", "title": "", "text": "872 F.2d at 1255; Mary Beth G., 723 F.2d at 1272. . See Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir.1989); Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 711 (9th Cir.1989), Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999) (en banc). . At least one other district court has created subclasses along similar lines. See Ford v. City of Boston, 154 F.Supp.2d 131, 135 (D.Ma.2001). . See, e.g., Miracle v. Bullitt County, Ky., 2008 WL 3850477 (W.D.Ky. Aug. 15, 2008); Florence v. Bd. of Chosen Freeholders of County of Burlington, 2008 WL 800970, *6 (D.N.J. March 20, 2008); Johnson v. District of Columbia, 248 F.R.D. 46, 50 (D.D.C.2008); Bull v. City and County of San Francisco, 539 F.3d 1193, 1195 (9th Cir.2008); Sutton v. Hopkins County, 2007 WL 119892, *1 (W.D.Ky. Jan. 11, 2007); Tardiff v. Knox County, 218 F.R.D. 332, 336 (D.Me.2003); Nilsen v. York County, 219 F.R.D. 19, 25 (D.Me.2003); McBean v. City of New York, 228 F.R.D. 487, 490 (S.D.N.Y.2005); Blihovde v. St. Croix County, Wis., 219 F.R.D. 607, 623 (W.D.Wis.2003). . See, e.g., Florence, 2008 WL 800970 at *12; Johnson, 248 F.R.D. at 56-57 (D.D.C.2008); Sutton, 2007 WL 119892, *6-*9; Tardiff v. Knox County, 365 F.3d 1, 5-7 (1st Cir.2004); Blihovde, 219 F.R.D. at 620-22; Maneely v. City of Newburgh, 208 F.R.D. 69, 76-77 (S.D.N.Y.2002). . See supra at n. 2. . See, e.g., Bull, 539 F.3d at 1195; McBean, 228 F.R.D. at 490; Tardiff v. Knox County, 365 F.3d at 5 (1st Cir.2004), affirming Nilsen v. York County, 219 F.R.D. 19, 19-20 (D.Me.2003) and Tardiff v. Knox County, 218 F.R.D. 332, 336 (D.Me.2003); Sutton, 2007 WL 119892 (W.D.Ky. Jan. 11, 2007). . See Giles, 746 F.2d at 617 (“Reasonable suspicion may be based on such factors as the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest record’’); John Does 1-100 v. Boyd, 613 F.Supp. 1514, 1525 (D.Minn.1985) (finding that reasonable suspicion “could be based on the nature of the offense," }, { "docid": "4775764", "title": "", "text": "Ms. Wilkes’ and other arres-tees’ privacy interests, we are guided by numerous decisions assessing the constitutionality of blanket strip search policies as applied to arrestees. These decisions are particularly relevant since they deal with the validity of visual strip searches not involving physical contact with the arres-tee, conducted pursuant to policies calling for strip searches of all defendants regardless of the offense with which they were charged. In evaluating the validity of these policies, the courts have followed the approach advocated in Bell v. Wolfish and have weighed the government’s interest in keeping its detention facilities free from weapons and contraband against the degradation the strip searches imposed on arres-tees. After balancing these concerns, seven of the Circuit Courts of Appeal and two courts in this judicial district have held that authorities must have a “reasonable suspicion” that an arrestee is harboring contraband or weapons before a visual strip search will be constitutionally permissible. Weber v. Dell, 804 F.2d 796 (2d Cir.1986), cert. denied, sub nom. County of Monroe v. Weber, — U.S. -, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Marybeth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); O’Brien v. Borough of Woodbury Heights, 679 F.Supp. 429 (D.N.J.1988); Davis v. City of Camden, 657 F.Supp. 396 (D.N.J.1987); see also State v. Sheppard, 196 N.J.Super. 448, 483 A.2d 235 (N.J.Super.L.1984). As Judge Brotman of this district has noted, reasonable suspicion is a standard which requires a particularized and objective basis for suspecting the particular person of secreting weapons or contraband. O’Brien, 679 F.Supp. at 433, quoting United States v. Montoya de Hernandez, 473 U.S. 531, 541-542, 105 S.Ct. 3304," }, { "docid": "14847216", "title": "", "text": "Parker ET# 4454 660 State Route # 11 Hunlock Creek, PA 18621 5. Donald Stewart GA-7744, SCI Graterford, PA 19426 . The 2,326 other claims forms are currently marked as ineligible because the individuals who submitted them do not appear in the City's records. . See Roberts v. Rhode Island, 239 F.3d 107 (1st Cir.2001); Weber v. Dell, 804 F.2d 796 (2d Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). . See, e.g., Weber, 804 F.2d at 802; Masters, 872 F.2d at 1255; Mary Beth G., 723 F.2d at 1272. . See Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir.1989); Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 711 (9th Cir.1989), Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999) (en banc). . At least one other district court has created subclasses along similar lines. See Ford v. City of Boston, 154 F.Supp.2d 131, 135 (D.Ma.2001). . See, e.g., Miracle v. Bullitt County, Ky., 2008 WL 3850477 (W.D.Ky. Aug. 15, 2008); Florence v. Bd. of Chosen Freeholders of County of Burlington, 2008 WL 800970, *6 (D.N.J. March 20, 2008); Johnson v. District of Columbia, 248 F.R.D. 46, 50 (D.D.C.2008); Bull v. City and County of San Francisco, 539 F.3d 1193, 1195 (9th Cir.2008); Sutton v. Hopkins County, 2007 WL 119892, *1 (W.D.Ky. Jan. 11, 2007); Tardiff v. Knox County, 218 F.R.D. 332, 336 (D.Me.2003); Nilsen v. York County, 219 F.R.D. 19, 25 (D.Me.2003); McBean v. City" }, { "docid": "5506513", "title": "", "text": "it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id. at 559, 99 S.Ct. at 1884 (emphasis added). In this case, it is undisputed that plaintiffs were arrested for minor traffic violations and were awaiting bail, that jail officials had no reasonable suspicion that these particular arrestees were likely to be carrying or concealing weapons or drugs, and that plaintiffs were searched solely because the blanket policy required all detainees to be subjected to a strip search. Every circuit court, including our own, which has considered the above circumstances under the Wolfish balancing test has concluded that a search under these circumstances is unconstitutional. See e.g., Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir.), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Watt v. City of Richardson Police Dep’t, 849 F.2d 195, 199 (5th Cir.1988); Walsh v. Franco, 849 F.2d 66, 68 (2d Cir.1988); Weber v. Dell, 804 F.2d 796, 801 (2d Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739, 742 (8th Cir.1985); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). There can be no doubt that a strip search is an invasion of personal rights of the first magnitude. It" }, { "docid": "4255792", "title": "", "text": "United States Courts of Appeals have invalidated such searches under similar circumstances. See Weber v. Dell, 804 F.2d 796 (2nd Cir.1986), cert. denied sub nom. County of Monroe v. Weber, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). In each of these cases, the task was, as it naa to oe, to oatance tne governmental interest in maintaining safe detention facilities against the rights of the arrestee to be free from what is, by all accounts, a degrading and unpleasant experience. The “reasonable suspicion” test—under which an arrestee may not be strip searched absent a reasonable suspicion that he or she is carrying a weapon or drugs or harboring contraband—fulfills this goal by properly balancing the arrestee’s right to be free from unreasonable intrusion against the legitimate interest of the police in maintaining a secure jail facility, an interest which is simply not compromised by the mere inability to post bail. What constitutes a “reasonable suspicion” must, of necessity, depend upon the individual circumstances of each case, and will obviously include an analysis of such factors as the nature of the offense which prompted the arrest, as well as the arrestee’s appearance and his or her prior criminal record. See, e.g., Giles, 746 F.2d at 617 (summarizing factors). Absent a reasonable suspicion to believe that the safety of a detention facility could be compromised, however, there is simply no need for conducting a strip search and, thus, utterly no justification for having done so here. Although defendants have generally ignored the large body of case law extant on" }, { "docid": "11773353", "title": "", "text": "Island, 239 F.3d 107, 113 (1st Cir.2001) (Roberts II) (stating that reasonable suspicion can be based on \"observations of a particular inmate during a less invasive pat-down frisk and clothing search, or based on contraband found during that search”). . See Justice v. City of Peachtree City, 961 F.2d 188, 193 (11th Cir.1992); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739, 742 (8th Cir. 1985); Stewart v. Lubbock County, Tex., 767 F.2d 153, 156-57 (5th Cir.), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614, 618 (9th Cir. 1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). . See Chapman v. Nichols, 989 F.2d 393, 398 (10th Cir. 1993) (holding that it was clearly established that a strip search policy applied to minor offense detainees without particularized reasonable suspicion was unlawful); Masters, 872 F.2d at 1255 (\"The decisions of all the federal courts of appeals that have considered the issue reached the same conclusion: a strip search of a person arrested for a traffic violation or other minor offense not normally associated with violence and concerning whom there is no individualized reasonable suspicion that the arrestee is carrying or concealing a weapon or other contraband, is unreasonable. We believe the right of such a person to be free of such a search was clearly established’ on October 21, 1986.”); Weber, 804 F.2d at 803 (denying qualified immunity for defendants who performed suspicionless strip searches on arres-tees because \"at least eleven circuit court decisions ... hold similar policies unconstitutional”); Jones, 770" }, { "docid": "4775765", "title": "", "text": "S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Marybeth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); O’Brien v. Borough of Woodbury Heights, 679 F.Supp. 429 (D.N.J.1988); Davis v. City of Camden, 657 F.Supp. 396 (D.N.J.1987); see also State v. Sheppard, 196 N.J.Super. 448, 483 A.2d 235 (N.J.Super.L.1984). As Judge Brotman of this district has noted, reasonable suspicion is a standard which requires a particularized and objective basis for suspecting the particular person of secreting weapons or contraband. O’Brien, 679 F.Supp. at 433, quoting United States v. Montoya de Hernandez, 473 U.S. 531, 541-542, 105 S.Ct. 3304, 3311, 87 L.Ed.2d 381 (1985). Factors which may lead authorities to reasonably suspect that an arrestee may be concealing such items include the crime with which she is charged, her particular characteristics, and the circumstances of her arrest. Weber, 804 F.2d at 802. This court considers the Borough’s policy of watching arrestees use bathroom facilities no less destructive of arrestees’ rights than the visual strip searches at issue in the cases cited above. Cf. Capua v. City of Plainfield, 643 F.Supp. at 1514. (“The requirement of surveillance during urine collection forces those tested to expose parts of their anatomy to the testing official in a manner akin to strip search exposure”). The very imperatives of human physiology dictate that arrestees detained in Clayton for any significant period of time will have at least those areas of their genitalia necessary for defecation and/or urination exposed to the police. Without a standard at least as stringent as that which applies to strip searches, the protections Davis and O’Brien grant arrestees in New Jersey will be ineffectual. In" }, { "docid": "16589108", "title": "", "text": "(\"No other amendments to the pleadings shall be made.”). . In Ernst v. Borough of Fort Lee, 739 F.Supp. 220, 224 (D.N.J.1990), Judge Barry made the following observation: \"The courts of this district have not stood alone in invalidating strip searches which are undertaken without reasonable suspicion to believe that an arrestee is concealing a weapon or drugs or harboring contraband. Indeed, as both Judges Cohen and Brotman noted in their consideration of this issue, no less than seven United States Courts of Appeals have invalidated such searches under similar circumstances. See Weber v. Dell, 804 F.2d 796, (2d Cir.1986), cert. denied sub no-mine County of Monroe v. Weber, 483 U.S. 1020 [107 S.Ct. 3263, 97 L.Ed.2d 762] (1987); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066 [106 S.Ct. 1378, 89 L.Ed.2d 604] (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053 [105 S.Ct. 2114, 85 L.Ed.2d 479] (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942 [102 S.Ct. 1435, 71 L.Ed.2d 653] (1982).” Visual observation of urination by police is treated like a strip search. Wilkes at 149. . Kane asserts the following: the high speed chase at 4:30 a.m., the obvious attempt by Littles to escape, the need for the blockade, the surreptitious behavior by plaintiff in her sudden emergence from the floor of the car as well as plaintiff’s repeated insistence to use the bathroom, the failure of Lit-tles’ and DiLoreto to produce registration and insurance for the vehicle, Mr. Littles’ intoxication and the odor of alcohol on plaintiffs breath and the fact that the ownership of the vehicle remained in doubt even during plaintiff’s use of the bathroom, led to the reasonableness of defendant Kane’s suspicion that plaintiff was bent on discarding evidence. Defendant Kane’s Brief at 6. . See Comment, Pretext Searches and the Fourth Amendment: Unconstitutional Abuses of Power," }, { "docid": "14042217", "title": "", "text": "this District have since held the same. See, e.g., DiLoreto v. Borough of Oaklyn, 744 F.Supp. 610, 622 (D.N.J.1990) (holding that a visual strip search and subsequent viewing of plaintiff urinating was not reasonable “on the basis of mere suspicion that a car in which the detainee was a passenger was stolen.”); Ernst v. Borough of Fort Lee, 739 F.Supp. 220, 225 (D.N.J.1990) (“The mere fact that an arrestee will be incarcerated ... does not render a strip search reasonable. Stated somewhat differently, arrest itself, standing alone, is simply not enough.”); O’Brien v. Borough of Woodbury Heights, 679 F.Supp. 429, 434 (D.N.J. 1988) (holding that strip/body cavity searches of plaintiffs arrested for petty disorderly offenses were unconstitutional and “senseless”); cf. Wilkes v. Borough of Clayton, 696 F.Supp. 144, 149 (D.N.J.1988) (holding borough’s blanket policy of visual observation of arrestees using bathroom facilities “no less destructive of arrestees’ rights than the visual strip searches” previously held unconstitutional). With respect to the Circuit Courts of Appeal, eight circuits presently agree that reasonable suspicion must be present before a strip search is conducted in this context. See Bull v. City and County of San Francisco, 539 F.3d 1193 (9th Cir.2008); Roberts v. Rhode Island, 239 F.3d 107 (1st Cir.2001); Weber v. Dell, 804 F.2d 796 (2d Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). This consensus is buttressed by valid concerns for privacy, dignity, and the preservation of self-worth. See, e.g., Roberts, 239 F.3d at 110 (considering strip searches an “extreme intrusion” on personal privacy and “an" }, { "docid": "14847215", "title": "", "text": "petition for attorneys’ fees and expenses is granted. Class Counsel is awarded fees of $1,770,000.00 and costs of $70,094.24 4. RSM McGladrey is awarded an additional $100,000 for administering the Settlement. 5. This Action and all claims against the settling Defendant are hereby dismissed with prejudice, but the Court shall retain exclusive and continuing jurisdiction of the Action, all Parties, and Settlement Class Members, to interpret and enforce the terms, conditions and obligations of this Settlement Agreement. 6. All Class Members who have not timely filed an opt-out request are barred and enjoined from commencing and/or prosecuting any claim or action against the Defendant. Any Class Member who has not timely filed a request to exclude themselves shall be enjoined from initiating and/or proceeding as a class action in any forum. IT IS SO ORDERED. EXHIBIT A Class Members Who Have Requested Exclusion From This Settlement 1. Reverend Daceia C. Frazier P.O. Box 48145 Philadelphia, PA 19144 2. Marvin Johnson PP# 62152 No Address 3. Glenn Galie 551 King Road Royersford, PA 19468 4. Mark Parker ET# 4454 660 State Route # 11 Hunlock Creek, PA 18621 5. Donald Stewart GA-7744, SCI Graterford, PA 19426 . The 2,326 other claims forms are currently marked as ineligible because the individuals who submitted them do not appear in the City's records. . See Roberts v. Rhode Island, 239 F.3d 107 (1st Cir.2001); Weber v. Dell, 804 F.2d 796 (2d Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). . See, e.g., Weber, 804 F.2d at 802; Masters," }, { "docid": "2706625", "title": "", "text": "suspicion or unless the arrestee was to come into contact with the general inmate population of the detention facility. The practice of strip searching all male arrestees is no longer in place at the Superior Court. The MCC also housed some convicted inmates, “witnesses in protective custody, and persons incarcerated for contempt.” Bell, 441 U.S. at 524, 99 S.Ct 1861. All were subject to the same policy of strip searching. The plaintiffs cite Wilson v. Jones, 251 F.3d 1340 (11th Cir.2001), which was overruled by Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc); Roberts v. Rhode Island, 239 F.3d 107 (1st Cir.2001); Masters v. Crouch, 872 F.2d 1248 (6th Cir.1989); Weber v. Dell, 804 F.2d 796 (2d Cir. 1986); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. Lubbock County, 767 F.2d 153 (5th Cir.1985); Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984), which was overruled by Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir.2010) (en banc); Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); and Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981). Since oral argument in this case, the Third Circuit has joined the Eleventh and the Ninth Circuits in upholding the constitutionality of strip searching all arrestees upon their introduction into a general jail population. Florence v. Bd. of Chosen Freeholders, 621 F.3d 296 (3d Cir.2010); but see Jimenez v. Wood Cnty., 621 F.3d 372, 375-76 (5th Cir.2010) (following circuit precedent in holding reasonable suspicion is required to strip search -an individual arrested for a minor offense); Stearns v. Clarkson, 615 F.3d 1278, 1282 (10th Cir.2010) (circuit precedent clearly established \"a detainee who is not placed in the general prison population cannot be strip searched” without reasonable suspicion) (internal quotation marks and citation omitted). ROGERS, Circuit Judge, dissenting: Contrary to the principles underlying qualified immunity as a limitation on the occasions when liability for unconstitutional conduct by a public official will be excused, the majority holds the conduct is to be evaluated by" }, { "docid": "7700170", "title": "", "text": "the plaintiffs’ constitutional rights. Id. at 528, 559, 99 S.Ct. 1861. For almost thirty years, circuit courts have followed the Bell Court’s instructions and, until today, universally held that reasonable suspicion is necessary to constitutionally justify the types of searches before us. See Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir.2001); Swain v. Spinney, 117 F.3d 1, 7 (1st Cir.1997); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989); Weber v. Dell, 804 F.2d 796, 804 (2d Cir.1986); Jones v. Edwards, 770 F.2d 739, 741-42 (8th Cir.1985); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir.1985); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984), overruled, on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n. 1 (9th Cir.1999) (en banc); Hill v. Bogans, 735 F.2d 391, 394-95 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981). The Supreme Court has never found it necessary to contradict the unanimous view of the circuit courts that required reasonable suspicion for strip searches over the past three decades. Quite the opposite. When the Court had the opportunity, it refused to do so. In Logan v. Shealy, after a trial, the Fourth Circuit enjoined a detention center from applying its blanket policy of strip-searching all booked individuals. 660 F.2d at 1013. The Fourth Circuit determined that the strip search of Logan — who was arrested for a DWI offense — had no “discernible relationship to security needs at the Detention Center that, when balanced against the ultimate invasion of personal rights involved, it could reasonably be thought justified.” Id. As the majority notes, in an order staying the injunction issued by the Fourth Circuit, Justice Rehnquist, in an individual opinion as Circuit Justice, strongly expressed his belief that the Fourth Circuit misapplied Bell by failing to give proper weight to the security concerns identified by the law enforcement officials as justification for the search. Clements v. Logan, 454 U.S. 1304, 1309-10, 102 S.Ct. 284 (Rehnquist, Circuit Justice), vacated, 454 U.S. 1117, 102" }, { "docid": "7700169", "title": "", "text": "to be free from degrading, humiliating, and dehumanizing treatment and the right to bodily integrity, include protection against forced nakedness during strip searches in front of others. See Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir.2006) (“We have reaffirmed the privacy rights of prisoners emphasizing the harm of compelled nudity.” (citing Padgett v. Donald, 401 F.3d 1273, 1281 (11th Cir.2005))). I recognize that even these rights can be circumscribed given adequate cause. The question is whether there is adequate cause to permit the intrusive searches of these arrestees. The Supreme Court in Bell instructed the lower courts to answer that question by considering the following four factors: (1) the justification for initiating the search; (2) the scope of the particular intrusion; (3) the manner in which the search is conducted; and (4) the place in which it is conducted. 441 U.S. at 559, 99 S.Ct. 1861. It did so based on a fully developed trial record, which detailed the procedure in place, the asserted justifications for the procedure, and the alleged violations of the plaintiffs’ constitutional rights. Id. at 528, 559, 99 S.Ct. 1861. For almost thirty years, circuit courts have followed the Bell Court’s instructions and, until today, universally held that reasonable suspicion is necessary to constitutionally justify the types of searches before us. See Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir.2001); Swain v. Spinney, 117 F.3d 1, 7 (1st Cir.1997); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989); Weber v. Dell, 804 F.2d 796, 804 (2d Cir.1986); Jones v. Edwards, 770 F.2d 739, 741-42 (8th Cir.1985); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir.1985); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984), overruled, on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n. 1 (9th Cir.1999) (en banc); Hill v. Bogans, 735 F.2d 391, 394-95 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981). The Supreme Court has never found it necessary to contradict the unanimous view of the circuit courts" }, { "docid": "14042218", "title": "", "text": "a strip search is conducted in this context. See Bull v. City and County of San Francisco, 539 F.3d 1193 (9th Cir.2008); Roberts v. Rhode Island, 239 F.3d 107 (1st Cir.2001); Weber v. Dell, 804 F.2d 796 (2d Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). This consensus is buttressed by valid concerns for privacy, dignity, and the preservation of self-worth. See, e.g., Roberts, 239 F.3d at 110 (considering strip searches an “extreme intrusion” on personal privacy and “an offense to the dignity of the individual”) (citation omitted); Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir.1993) (“It is axiomatic that a strip search represents a serious intrusion upon personal rights.”); Mary Beth G., 723 F.2d at 1272 (7th Cir.1983) (considering strip searches “demeaning, dehumanizing, undignified, embarrassing and repulsive”); see also, O’Brien, 679 F.Supp. at 434 (D.N.J.1988) (describing strip/body cavity searches of plaintiffs for disorderly offenses as “humiliat[ing] and degrading]”). In short, a clear consensus demonstrates that these searches are undignified and unconstitutional. Defendants disagree and contend that “[t]he weight of current authority nationwide as to the legality of blanket strip searches in prisons has turned overwhelmingly in favor of upholding such searches.” (Def.’s Burlington Reply Br. at 2.) In light of this “overwhelming” authority, Defendants contend that “Davis misinterpreted the Supreme Court’s ruling in Bell v. Wolfish, and this court should not adhere to its result.” (Id.) (internal citation omitted). Defendants are correct that a circuit split has developed, but it is an overstatement to say that “current authority” has “turned overwhelmingly”. ii" }, { "docid": "20281696", "title": "", "text": "was concealing weapons or contraband, and that the district court erred in determining an appropriate award of attorneys’ fees. The panel rejected these arguments, and the County has not raised these issues on rehearing. Accordingly, we reinstate those portions of the panel opinion that decide these issues — namely, Parts III, IV, and V. See Jimenez, 621 F.3d at 378-80. . See Swain v. Spinney, 117 F.3d 1, 7 (1st Cir.1997); Weber v. Dell, 804 F.2d 796, 804 (2d Cir.1986); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983); Jones v. Edwards, 770 F.2d 739, 741-42 (8th Cir.1985); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984) (per curiam); Hill v. Bogans, 735 F.2d 391, 394-95 (10th Cir.1984); Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir.2001). . See Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 977 (9th Cir.2010) (en banc) (overruling Thompson v. City of Los Angeles, 885 F.2d 1439, 1446-47 (9th Cir.1989); Giles, 746 F.2d at 617); Powell v. Barrett, 541 F.3d 1298, 1314 (11th Cir.2008) (en banc) (overruling Wilson, 251 F.3d at 1343). . See Florence v. Bd. of Chosen Freeholders of the Cnty. of Burlington, 621 F.3d 296, 308 (3d Cir.2010); Bame v. Dillard, 637 F.3d 380, 386 (D.C.Cir.2011). The Supreme Court has granted certiorari in Florence on the following question: “Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances.” Florence, 131 S.Ct. 1816 (2011). . 541 F.3d 1298 (11th Cir.2008) (en banc). At that time, Powell was the only appellate decision supporting the County's position in this appeal. . Furthermore, even if the discussion had taken place at the appropriate time, it would not amount to a specific, formal objection sufficient to preserve the error. See, e.g., Redd, 355 F.3d at 874 (\"We have repeatedly held that a general objection to the district court’s jury instructions is insufficient to satisfy Rule 51.”" }, { "docid": "6405641", "title": "", "text": "Because this court finds itself in total agreement with the predominating caselaw in this area, which has found blanket strip/body cavity search policies such as the one in force at the Gloucester County Jail to be insupportable and unconstitutional, plaintiffs’ motion for summary judgment on this issue will be granted and defendants’ corresponding motion will be denied. 1. The Unconstitutionality Of The Searches In evaluating the permissibility of body cavity or strip searches of arrestees, seven of the United States Circuit Courts of Appeals have held that such searches must be based on a “reasonable suspicion” that an arrestee is concealing contraband or weapons. See Weber v. Bell, 804 F.2d 796 (2d Cir.1986), cert denied sub nom County of Monroe v. Weber, — U.S. -, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604; Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479; Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). And while the Third Circuit has yet to address the question, in a recent opinion issuing from this district, the Honorable Mitchell H. Cohen declared unconstitutional a blanket policy of the Camden County Jail which subjected all arrestees to indiscriminate strip/body cavity searches. Davis v. City of Camden, 657 F.Supp. 396 (D.N.J.1987). Nonetheless, defendants contend, in the face of this overwhelming contrary authority, that the blanket strip/body cavity search policy of the Gloucester County Jail is a necessary and constitutional procedure. Defendants further argue that the case of Davis v. City of Camden was wrongly decided and is inconsistent with the Supreme Court’s holding in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1970). In Bell v. Wolfish, the Court upheld as constitutional a policy under" }, { "docid": "4255791", "title": "", "text": "the detainees had previously been convicted of serious crimes. Bell, 441 U.S. at 524, 99 S.Ct. at 1866. Here, Ernst was arrested for what is admittedly one of most petty traffic violations extant within the State of New Jersey—driving with a suspended registration. The arresting officers have at no time indicated that they suspected that Ernst was armed or dangerous, nor have they indicated that they believed Ernst was concealing drugs or contraband. In short, as in Davis and O’Brien, there is simply nothing in the record to indicate that there was any reason at all—other than the wholly inadequate reason that he could not post bail—to subject Ernst to the “humiliation and degradation” of a strip search. See O’Brien, 679 F.Supp. at 434. The courts of this district have not stood alone in invalidating strip searches which are undertaken without reasonable suspicion to believe that an arrestee is concealing a weapon or drugs or harboring contraband. Indeed, as both Judges Cohen and Brotman noted in their consideration of this issue, no less than seven United States Courts of Appeals have invalidated such searches under similar circumstances. See Weber v. Dell, 804 F.2d 796 (2nd Cir.1986), cert. denied sub nom. County of Monroe v. Weber, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). In each of these cases, the task was, as it naa to oe, to oatance tne governmental interest in maintaining safe detention facilities against the rights of the arrestee to be free from what is, by all accounts, a degrading and unpleasant experience. The “reasonable" }, { "docid": "11773352", "title": "", "text": "been arrested for an offense more serious than those attributed to the plaintiffs in this case. Covino, 967 F.2d at 75 n. 1. The Second Circuit did not base its decision on this distinction, however, nor did it limit its holding to blanket strip searches of \"major” offenders. . Indeed, the Bell Court suggested that the lack of a history of discovered contraband on inmates’ bodies might attest to the effectiveness of this search modality as a deterrent. Bell, 441 U.S. at 559, 99 S.Ct. 1861. . We note at the outset that the reasonable suspicion standard is not particularly demanding. Reasonable suspicion is \"something stronger than a mere hunch, but something weaker than probable cause.” Wood v. Clemons, 89 F.3d 922, 929 (1st Cir.1996) (citation and quotation marks omitted). It is a standard that can be satisfied by a wide range of circumstances, including \"the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.’’ Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986); see also Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir.2001) (Roberts II) (stating that reasonable suspicion can be based on \"observations of a particular inmate during a less invasive pat-down frisk and clothing search, or based on contraband found during that search”). . See Justice v. City of Peachtree City, 961 F.2d 188, 193 (11th Cir.1992); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989), cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506 (1989); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739, 742 (8th Cir. 1985); Stewart v. Lubbock County, Tex., 767 F.2d 153, 156-57 (5th Cir.), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614, 618 (9th Cir. 1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983);" }, { "docid": "20281695", "title": "", "text": "misdemeanor or traffic violation charges”). In Stewart, however, the detainees had been arrested pursuant to Class C misdemeanors, which, unlike the Class A misdemeanor in this case, were punishable only by fine. Nevertheless, in light of the persuasive authority, we hold that [the misdemeanor variant of] hindering apprehension ... is, given its misdemeanor status, a minor offense for these purposes .... Jimenez, 621 F.3d at 377-78. Therefore, the district court did not err in instructing the jury that Ms. Jimenez’s offense was a minor offense as a matter of law. III. Because the County has not demonstrated reversible error in the jury instructions in this case, we affirm the judgment of the district court. We reinstate Parts III, IV, and V of the panel opinion, which rejected other arguments that the County has not urged on rehearing. AFFIRMED. . Before the panel, the County raised several additional arguments. The County argued that Sheriff Daugherty was entitled to qualified immunity because the law was not clearly established, that the officers had reasonable suspicion that Ms. Jimenez was concealing weapons or contraband, and that the district court erred in determining an appropriate award of attorneys’ fees. The panel rejected these arguments, and the County has not raised these issues on rehearing. Accordingly, we reinstate those portions of the panel opinion that decide these issues — namely, Parts III, IV, and V. See Jimenez, 621 F.3d at 378-80. . See Swain v. Spinney, 117 F.3d 1, 7 (1st Cir.1997); Weber v. Dell, 804 F.2d 796, 804 (2d Cir.1986); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983); Jones v. Edwards, 770 F.2d 739, 741-42 (8th Cir.1985); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984) (per curiam); Hill v. Bogans, 735 F.2d 391, 394-95 (10th Cir.1984); Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir.2001). . See Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 977 (9th Cir.2010) (en banc) (overruling Thompson v. City of Los Angeles, 885" }, { "docid": "5506514", "title": "", "text": "849 F.2d 195, 199 (5th Cir.1988); Walsh v. Franco, 849 F.2d 66, 68 (2d Cir.1988); Weber v. Dell, 804 F.2d 796, 801 (2d Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987); Jones v. Edwards, 770 F.2d 739, 742 (8th Cir.1985); Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). There can be no doubt that a strip search is an invasion of personal rights of the first magnitude. It is axiomatic that a strip search represents a serious intrusion upon personal rights. In [Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983)], the court referred to strip searches as “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.” Mary Beth G., 723 F.2d at 1272. Another court described the indignity individuals arrested for minor offenses experience in the following manner: The experience of disrobing and exposing one’s self for visual inspection by a stranger clothed with the uniform and authority of the state, in an enclosed room inside a jail, can only be seen as thoroughly degrading and frightening. Moreover, the imposition of such a search upon an individual detained for a lesser offense is quite likely to take that person by surprise, thereby exacerbating the terrifying quality of the event. John Does 1-100 v. Boyd, 613 F.Supp. 1514, 1522 (D.C.Minn.1985). Justice v. City of Peachtree City, 961 F.2d 188, 192 (11th Cir.1992); see also Boren v. Deland, 958 F.2d 987, 988 n. 1 (10th Cir.1992) .(“[A] strip" } ]

[ { "docid": "13270539", "title": "", "text": "December 15th. Therefore, the majority found the action of the Company unlawful under NLRB v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963), and NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967), even though they also found that the Company neither foresaw nor intended anti-union consequences. SCOPE OF REVIEW The role of the court of appeals in reviewing a decision of the Board is to determine (1) whether the order was supported by substantial evidence on the record as a whole, or (2) whether the Board misapplied the law. NLRB v. Insurance Agents’International Union, AFL-CIO, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960). ANALYSIS Normally, to sustain a finding that an employer has committed an unfair labor practice there must be an affirmative showing of an unlawful motivation to either discourage union membership or interfere with the exercise of protected rights. NLRB v. Great Dane Trailers, Inc., supra, recognizes exceptions to the requirement of an affirmative showing of unlawful motivation in two circumstances. The first is when the employer’s conduct is inherently destructive of the employees’ right to strike or engage in collective bargaining. Such conduct is conduct which carries with it “ . . . ‘unavoidable consequences which the employer not only foresaw but which he must have intended’ and thus bears ‘its own indicia of intent.’ ” 388 U.S. at 33, 87 S.Ct. at 1797, 18 L.Ed.2d at 1034. [Emphasis supplied]. Those cases finding an employer’s conduct inherently destructive, bearing their own indicia of intent, are cases involving conduct with far reaching effects which would hinder future bargaining, or conduct which discriminates solely upon the basis of participation in strikes or union activity. Examples of inherently destructive activity are permanent discharge for participation in union activities, granting of superseniority to strike breakers, and other actions creating visible and continuing obstacles to the future exercise of employee rights. Inter-Collegiate Press, Graphic Arts Division v. NLRB, 486 F.2d 837 (CA8, 1973). Here the conduct complained of, granting the retroactive pay increase to workers who had" } ]

[ { "docid": "22794073", "title": "", "text": "official has a duty to ensure compliance with the terms of the collective-bargaining agreement. Breach of this duty justifies the imposition of an additional penalty on union officials. Alternatively, the company contends that a union in effect may waive any statutory protection that otherwise would be accorded its officials by agreeing that they will undertake specific action to assure compliance with the no-strike clause. In this case, the arbitration awards and the union’s acquiescence in the harsher sanctions imposed on its officials are sufficient to establish a clear contractual duty. We examine these arguments in turn. A Section 8(a)(3) makes it an unfair labor practice for an employer “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” 29 U. S. C. § 158(a)(3). By its terms, the statute requires proof that disparate treatment has been accorded union members and that the employer’s action is likely to discourage participation in union activities. See NLRB v. Brown, 380 U. S. 278, 286 (1965). Congress, howqver, did not intend to make unlawful all acts that might have the effect of discouraging union membership. See American Ship Building Co. v. NLRB, 380 U. S. 300, 311 (1965). Rather, the intention was to forbid only those acts that are motivated by an anti-union animus. See, e. g., NLRB v. Great Dane Trailers, Inc., 388 U. S. 26, 33 (1967); NLRB v. Brown, supra, at 286-287. In determining whether Metropolitan Edison’s conduct constitutes a § 8(a)(3) violation, we are guided by well-established precedent. Where there is direct evidence of an employer’s antiunion motive, the Court has recognized that otherwise legitimate actions may constitute unfair labor practices. See NLRB v. Erie Resistor Corp., 373 U. S. 221, 227 (1963). Where, as here, there is only circumstantial evidence of intent to discriminate, identification of a § 8(a)(3) violation involves a more difficult inquiry. Intent must be inferred from conduct. But an employer may take actions in the course of a labor dispute that present a possible complex of motives, see id.," }, { "docid": "4455113", "title": "", "text": "some of Board’s findings of violations does not cause those violations to “disappear,” rather, “[t]hey remain, lending their aroma to the context in which the [challenged] issues are considered.”); NLRB v. Big Three Industrial Gas & Equipment Company, 579 F.2d 304, 315 (5th Cir.1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1501, 59 L.Ed.2d 773 (1979) (timing of decision, presence of other unfair labor practices, and lack of attempt to solve problems without termination are considered in finding anti-union motivation in violation of section 8(a)(3)). We are well aware that in the present case there must be a showing not only of anti-union animus, but of a motive to chill non-change service employees. Nevertheless, the anti-union animus displayed by Purolator’s section 8(a)(1) violations are important indications that Purolator’s motive was to harm unionism. Cf. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967) (section 8(a)(3) violation normally turns on whether the discriminatory conduct was motivated by anti-union purpose); NLRB v. Dan River Mills, Inc., 274 F.2d 381, 384 (5th Cir.1960) (“antiunion bias and demonstrated unlawful hostility are proper and highly significant factors for Board evaluation in determining motive” under section 8(a)(3)). We agree with the Board, as stated in Darlington on remand, that in determining whether a purpose to chill exists we must rely on the “fair inferences arising from the totality of the evidence, considered in the light of then-existing circumstances.” Darlington Manufacturing Co., 165 N.L.R.B. 1074, 1083 (1967). “The requisite motivation to chill may be provided by something less than direct evidence, which is rarely available in cases of this kind. In this branch of the law, as in all others, proof of motive may be supplied by circumstantial evidence which affords a sound basis for drawing inferences.” Id. Thus, where it is found that a plant or a portion thereof, is closed because of opposition to the union “the incidence of one such directly causative antiunion motive strengthened the probability of a second antiunion purpose — i.e., the ‘chilling’ of remaining employees in the exercise of their Section 7 rights.”" }, { "docid": "11986533", "title": "", "text": "increase of 10 cents per hour for the week starting December 1st, 1966. These promises were made by the employer to interfere with union organizational activity and to interfere with the employees rights under section 7 of the Act.” . With respect to what is presently in issue, the affirmance was without opinion. We in no way criticize this practice, but for convenience we will from time to time hereafter speak only in terms of the trial examiner. . See Perl, Granting of Benefits During a Representation Election: Validity of NLRB General Rule, 18 Labor L.J. 643, 647 (1967) ; cf. Christensen and Svanoe, Motive and Intent in the Commission of Unfair Labor Practices: The Supreme Court and the Fietive Formality, 77 Yale L.J. 1269, 1306 (1968). . This burden of proof is consistent with the latest Supreme Court rulings as to the proof of improper motivation in section 8(a) (3) violations in NLRB v. Great Dane Trailers, Inc., 1967, 388 U.S. 26, 33-34, 87 S.Ct. 1792, 18 L.Ed.2d 1027. Although improper motivation is not a required element in all 8(a) (1) violations as it usually is in 8(a) (3) violations, the Court’s rulings are applicable to the situation in this case where the Board has in effect made motivation an essential element to this 8(a) (1) violation. It seems appropriate that the grant of benefits should come within the second category established in the Great Dane case — conduct causing a comparatively slight harm to employee rights — and not the first category, of inherently destructive conduct. Thus, although the employer would have the .burden of coming forward with a substantial and legitimate business justification once the Board had shown a harmful effect, the burden would remain on the Board and “an affirmative showing of improper motivation must be made.” 388 U.S. at 34, 87 S.Ct. at 1798. This means an affirmative showing that it was not the business purpose that caused the employer’s action. NLRB v. Billen Shoe Co., supra. . Insofar as criticism was implied by the use of this phrase, we note that an across-the-board increase" }, { "docid": "5364208", "title": "", "text": "presumed, there was no unfair labor practice. In two later cases, however, the Court seems to have retreated from its per se approach in American Ship. In NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967), the Court added to its American Ship formulation a new category covering employer conduct which had only a “eom•paratively slight” adverse effect on employee rights. Great Dane held that to make out a Section 8(a)(3) violation in these cases antiunion motivation need not be proved unless the employer demonstrates that there were “legitimate and substantial business justifications for the conduct.” The subsequent case of NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967), applied this analysis to Section 8(a) (1) violations as well as unfair labor practices under Section 8(a)(3). In both Great Dane and Fleetwood, once the union has shown some adverse effect upon the rights of the employees, the employer must bear the burden of establishing the “legitimate and substantial business justifications for the conduct.” The Court, therefore, has established two categories of Sections 8(a)(1) and 8(a)(3) violations which do not require proof of antiunion animus. First, employer conduct which is “inherently destructive” of employee rights is an unfair labor practice whether or not such conduct was based upon important business considerations. Second, employer conduct which has only a “comparatively slight” impact on the rights of employees will also be held an unfair labor practice unless the employer comes forward with evidence of “legitimate and substantial” reasons to justify his conduct. Perhaps the most significant part of this test is the Court’s requirement that the reasons advanced be substantial. Apparently the employer must demonstrate that his interest in pursuing the conduct at least balances the harm inflicted on the rights of the employees. Otherwise, the Court will find that an unfair labor practice has been made out with no proof of an antiunion motive. Only if the employer meets his burden will the Court require proof of an antiunion animus. Great Dane, therefore, seems to adopt a more flexible" }, { "docid": "11505651", "title": "", "text": "lies. H. A. Taylor, Jr. — That is all for this meeting. This meeting is adjourned. Meeting adjourned at 2:15 P.M. . 29 U.S.C. §§ 158(a) (1) and (a) (3). . Bettcher Mfg. Corp., 76 NLRB 526; N. P. Nelson Iron Works, Inc., 80 NLRB 788; Klate Holt Co., 161 NLRB 1606; Hutting Sash & Door Co., 154 NLRB 1567; Thor Power Tool Co., 148 NLRB 1379. . 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). Darlington concerned unfair labor practice charges under §§ 8(a) (1), (3) and (5) brought against a textile manufacturer that liquidated its business following a union victory in a representation election. . 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). In Brown the Court considered 8(a) (1) and (3) charges brought against the members of a multi-employer bargaining group who locked out their employees and hired replacements following a whipsaw strike against another member of the group. . 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965). American Ship Bldg., involved 8(a) (1) and (3) charges against an employer who locked out or laid off employees during contract negotiations to strengthen its bargaining position. . N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967) ; N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967). . Sections 8(a) (1) and (3) of the Act, 29 U.S.C. §§ 158(a) (1) and (3), provide : (a) It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title] ; * * * * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * * . The practical role of “motive” appears to be diminishing even in the case of § 8(a) (3). Compare Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827" }, { "docid": "6015161", "title": "", "text": "modified on other grounds, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6 (1940). , That such dis crimination tends to discourage membership in a labor organization can hardly be doubted. See NLRB v. Great Dane Trailers, Inc., 388 U.S. at 32, 87 S.Ct. 1792. Frick next asserts that, assuming discriminatory conduct, in the absence of employer action which is “inherently destructive\" of the protected rights of employees thei burden is on General Counsel in order to support an allegation that the company violated Section 8(a) (3) to prove that Frick applied its company rule to the strikers with an antiunion motivation, citing NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965) and American Ship Building Co. v. NLRB, 380 U.S. at 300, 85 S.Ct. 955, 13 L.Ed.2d 855. In NLRB v. Great Dane Trailers, Inc., supra, 388 U.S. at 34, 87 S.Ct. at 1798, the Court stated: “From this review of our recent decisions, several principles of controlling importance here can be distilled. First, if it can reasonably be concluded that the employer’s discriminatory conduct was ‘inherently destructive’ of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is ‘comparatively slight,’ an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him.” Frick contends that the decision in Great Dane created a substantial change in the law as to when a company must come forward with evidence of business justification. Frick asserts that since the Great Dane case was decided on June" }, { "docid": "10109712", "title": "", "text": "on the employer’s motivation.”); NLRB v. Brown, 380 U.S. 278, 287, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965) (“We have determined that the ‘real motive’ of the employer in an alleged § 8(a)(3) violation is decisive.... ” (quoting Associated Press v. NLRB, 301 U.S. 103, 132, 57 S.Ct. 650, 81 L.Ed. 953 (1937))). Congress’s intent is clear both in the plain text of the statute and in the legislative' history. See, e.g., NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967) (“The statutory language ‘discrimination ... to ... discourage’ means that the finding of a violation normally turns on whether the discriminatory conduct was motivated by an antiunion purpose.” (alterations in original) (quoting 29 U.S.C. § 158(a)(3))); Radio Officers’ Union, 347 U.S. at 44, 74 S.Ct. 323 (describing the NLRA’s legislative history). However, under certain circumstances, actual proof of an improper anti-union motive has been held to be unnecessary. Specifically, “two categories of § 8(a)(3) violations ... do not require proof of motive.” NLRB v. Hudson Transit Lines, Inc., 429 F.2d 1223, 1229 (3d Cir.1970) (emphasis added). “First, if an employer’s conduct is ‘inherently destructive’ of important employee rights, no proof of anti-union motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that his conduct was motivated by business considerations.” Id. at 1227-28. “Second, if the employer’s conduct could have adversely affected employee rights to some extent[,] the employer must establish that he was motivated by legitimate objectives,” and, if he does not, “the conduct constitutes an unfair labor practice ‘without reference to intent.’ ” Id. at 1228 (quoting NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 380, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967)). If the employer does proffer a substantial and legitimate business justification for the different treatment, however, it can be overcome by proof of antiunion motive, notwithstanding an otherwise legitimate justification. In Great Dane, the Supreme Court.provided a thorough explanation of how the Board should analyze an alleged violation of § 8(a)(3). 388 U.S. at 33-34, 87 S.Ct. 1792." }, { "docid": "4455112", "title": "", "text": "63 L.Ed.2d 599 (1980) (quoting NLRB v. Vangas, Inc., 517 F.2d 747, 748 (9th Cir.1975)). “In d.etermining motive, the Board may consider circumstantial and direct evidence, and it’s inferences will prevail if reasonable and supported by substantial evidence on the record as a whole.” Fort Vancouver, 604 F.2d at 600 (citations omitted). Although “unlawful motivation is not lightly to be inferred and ‘mere suspicions of unlawful motivation are not sufficient to constitute substantial evidence,’ ” Weather Tamer, 676 F.2d at 492 (quoting Federal-Mogul Corporation v. NLRB, 566 F.2d 1245, 1259 (5th Cir.1978)), the record in the present case establishes much more than “mere suspicion.” Purolator has been found guilty of numerous section 8(a)(1) violations. These actions demonstrate that Purolator was staunchly opposed to unionization of its employees and was willing to commit a variety of unlawful acts to defeat the Union. As such, they form the background of our evaluation of the alleged section 8(a)(3) violation. See NLRB v. Clark Manor Nursing Home Corporation, 671 F.2d 657, 660 (1st Cir.1982) (failure of employer to challenge some of Board’s findings of violations does not cause those violations to “disappear,” rather, “[t]hey remain, lending their aroma to the context in which the [challenged] issues are considered.”); NLRB v. Big Three Industrial Gas & Equipment Company, 579 F.2d 304, 315 (5th Cir.1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1501, 59 L.Ed.2d 773 (1979) (timing of decision, presence of other unfair labor practices, and lack of attempt to solve problems without termination are considered in finding anti-union motivation in violation of section 8(a)(3)). We are well aware that in the present case there must be a showing not only of anti-union animus, but of a motive to chill non-change service employees. Nevertheless, the anti-union animus displayed by Purolator’s section 8(a)(1) violations are important indications that Purolator’s motive was to harm unionism. Cf. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967) (section 8(a)(3) violation normally turns on whether the discriminatory conduct was motivated by anti-union purpose); NLRB v. Dan River Mills, Inc., 274 F.2d 381, 384" }, { "docid": "10109711", "title": "", "text": "eligible to vote in the representation election.” (J.A. 18.) The Board provided no discussion of its own regarding the relevant law. 2. Analysis Section 8(a)(3) makes it “an unfair labor practice for an employer ... by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” Id. § 158(a)(3) (emphasis added). Thus, to find a § 8(a)(3) violation, consideration must be given to the employer’s -motive. The Supreme Court has held, time and again, that a violation of § 8(a)(3) normally turns on an employer’s antiunion purpose or motive. “That Congress intended the employer’s purpose in discriminating to be controlling is clear.” Radio Officers’ Union of Commercial Telegraphers Union, A.F.L. v. NLRB, 347 U.S. 17, 44, 74 S.Ct. 323, 98 L.Ed. 455 (1954) (emphasis added); see also Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 311, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965) (“It has long been established that a finding of violation under this section will normally turn on the employer’s motivation.”); NLRB v. Brown, 380 U.S. 278, 287, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965) (“We have determined that the ‘real motive’ of the employer in an alleged § 8(a)(3) violation is decisive.... ” (quoting Associated Press v. NLRB, 301 U.S. 103, 132, 57 S.Ct. 650, 81 L.Ed. 953 (1937))). Congress’s intent is clear both in the plain text of the statute and in the legislative' history. See, e.g., NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967) (“The statutory language ‘discrimination ... to ... discourage’ means that the finding of a violation normally turns on whether the discriminatory conduct was motivated by an antiunion purpose.” (alterations in original) (quoting 29 U.S.C. § 158(a)(3))); Radio Officers’ Union, 347 U.S. at 44, 74 S.Ct. 323 (describing the NLRA’s legislative history). However, under certain circumstances, actual proof of an improper anti-union motive has been held to be unnecessary. Specifically, “two categories of § 8(a)(3) violations ... do not require proof of motive.” NLRB v. Hudson Transit" }, { "docid": "15344104", "title": "", "text": "be said that the interference with § 7 rights outweighed the employer’s business justification. The American Ship case reaffirmed the rule announced in N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963) and N.L.R.B. v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965) (decided simultaneously with American Ship) that the question of whether an employer has violated § 8(a) (3) normally turns on an employer’s motivation. The significant portion of the Court’s holding is set forth in the margin. Succinctly stated, discriminating conduct is violative of § 8(a) (3) only when it is motivated by an anti-union purpose. The rule has been repeated as stated in the most recent decision, N.L.R.B. v. Great Dane Trailers, 388 U.S. 26, 87 5. Ct. 1792, 18 L.Ed.2d 1027, 1034 (1967). There are, of course, some practices “which are inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other antiunion animus is required.” (American Ship, Id., p. 311, 85 S.Ct. p. 964), an example of which is discharge of union members who violate shop rules when violations by non-union members are not made the subject of disciplinary action. Great Dane also establishes that “once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that it was motivated by legitimate objectives since proof of motivation is most accessible to him.” Id. at 34, 87 S.Ct. at 1798, 18 L.Ed.2d 1035. Thus, where an employer fails to demonstrate any legitimate economic motivation for a clearly discriminatory action, even absent a positive showing of applicaanimus, that invidious animus must be inferred. The Darlington and American Ship cases, besides establishing what constitutes a violation of either section, are aff’g authority for certain rules for judging the interrelationship between alleged §§ 8(a) (1) and famil(3) violations: Any act which proce§ 8(a) (3) necessarily violates § 8(a) (1) because a motive to discriminate is essential to" }, { "docid": "1415358", "title": "", "text": "itself claimed as illegal. We believe this case falls into the category of cases established by the Bryan Manufacturing court to be unaffected by Section 10(b): where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose § 10(b) ordinarily does not bar such evidentiary use of anterior events. 362 U.S. at 416, 80 S.Ct. at 826 (footnote omitted). B. Having cleared the limitations hurdle, we next resolve the issue of what standard applies to judge the validity of the petitioner’s periodic notice requirement. In NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543,19 L.Ed.2d 614 (1967), the Supreme Court held that an employer commits an unfair labor practice by refusing to reinstate economic strikers, unless the employer can show that the refusal was due to “legitimate and substantial business justifications.” Id. at 378, 88 S.Ct. at 545. The Court borrowed the quoted language from NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 87 S.Ct. 1792, 1797, 18 L.Ed.2d 1027 (1967), which in turn referred to Court opinions in NLRB v. Brown, 380 U.S. 278, 289, 85 S.Ct. 980, 987, 13 L.Ed.2d 839 (1965), and American Ship Building Co. v. NLRB, 380 U.S. 300, 311-13, 85 S.Ct. 955, 963-64, 13 L.Ed.2d 855 (1965). These cases established that certain employer conduct is inherently so prejudicial to employees’ rights that an unfair labor practice is presumed unless the employer can prove legitimate and substantial business justifications to vindicate its actions. See Laidlaw Corp. v. NLRB, 414 F.2d 99, 103 (7th Cir.1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970). Here, the periodic notice requirement instituted by the petitioner is indeed inherently destructive of employee rights; the procedure is designed to extinguish the preferential hiring rights of strikers. Nevertheless, the petitioner argues that any reasonable notice procedure is valid, claiming that the business justification standard is inappropriate. We disagree. Logic suggests that if" }, { "docid": "12460837", "title": "", "text": "Cir. 1961). By enforcing the EIU’s unlawful pass requirement, NCR discriminated against those employees who had exercised or might have wished to exercise their section 7 right to refrain from engaging in concerted activity by coming to work without a pass. By thus discriminating, NCR prima facie violated section 8(a)(1). It is undisputed, however, that NCR took this affirmative step only because it feared for the safety of its employees. It had no anti-union animus, no desire to encourage membership in the union, and no motivation to interfere with protected activity. The company contends, therefore, that it was justified in acquiescing in and enforcing the pass requirement because its interference with its employees’ protected activity was outweighed by its legitimate interest in safeguarding its employees’ welfare and in cooperating with the United States Government. Although this argument has some appeal, authority requires us to reject it. An employer may have a business justification sufficient to excuse his interference with his employees’ protected activity. Textile Workers Union of America v. Darlington Manufacturing Company, 380 U.S. 263, 269, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). And, although it has been held that the absence of an anti-union animus does not of itself afford a defense to an employer’s interference with protected activity, NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964), and that “it is the tendency of an employer’s conduct to interfere with the rights of his employees protected by Section 8(a)(1), rather than his motives, that is controlling,” Welch Scientific Company v. NLRB, 340 F.2d 199, 203 (2d Cir. 1965); see also NLRB v. Hudson Motor Car Company, 128 F.2d 528, 533 (6th Cir. 1942), in the absence of proof of an unlawful motivation, an employer may interfere with protected activity without violating section 8(a)(1) unless the. employer’s conduct “is demonstrably destructive of employee rights and is not justified by the service of significant or important business ends.” NLRB v. Brown; 380 U.S. 278, 282, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); see American Ship Building Company v. NLRB, 380 U.S. 300," }, { "docid": "5364207", "title": "", "text": "acts which are demonstrably so destructive-of collective bargaining” that no evidence of illegal intent on the part of the employer need be shown, or else the Board had to prove an antiunion animus on the part of the employer. The Court held that the American Ship lockout was not an act which enabled the Board to presume illegal intent. The Court also found that there was no evidence and no finding of an illegal motive. Consequently, it held there could be no violation of Section 8 (a)(1). Similarly, the Court found that there must be evidence of antiunion motivation under Section 8(a)(3) to make out a violation. Such evidence could be dispensed with only if the employer’s practice was “inherently so prejudicial to union interests and so devoid of significant economic justification\" that no specific antiunion animus was required. And again the Court held that in the circumstances of American Ship a bargaining lockout did not come within that category. Therefore, unless an illegal purpose on the part of the employer could be proved or presumed, there was no unfair labor practice. In two later cases, however, the Court seems to have retreated from its per se approach in American Ship. In NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967), the Court added to its American Ship formulation a new category covering employer conduct which had only a “eom•paratively slight” adverse effect on employee rights. Great Dane held that to make out a Section 8(a)(3) violation in these cases antiunion motivation need not be proved unless the employer demonstrates that there were “legitimate and substantial business justifications for the conduct.” The subsequent case of NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967), applied this analysis to Section 8(a) (1) violations as well as unfair labor practices under Section 8(a)(3). In both Great Dane and Fleetwood, once the union has shown some adverse effect upon the rights of the employees, the employer must bear the burden of establishing the “legitimate and substantial business justifications for the" }, { "docid": "6015160", "title": "", "text": "lawful reasons for such a refusal. See, e. g., 389 U.S. at 379, 88 S.Ct. 543. Certainly refusal to pay vacation benefits to employees engaged in protected activity also presents sufficient evidence of discrimination which demands that the employer bring forward proof to defend his action. Our examination of the record discloses no evidence presented by Frick showing how the “unauthorized or unexplained” absence rule had been applied in the past except for the bald statement by Director of Industrial Relations Hoff that it would apply to any employee. This is not sufficient. “[S]trikers must be treated uniformly with nonstrikers with respect to whatever benefits accrue to the latter from the existence of the employment relationship.” Great Dane Trailers, 150 NLRB 438, 439 (1964), rev’d sub nom. NLRB v. Great Dane Trailers, Inc., 363 F.2d 130 (5 Cir. 1966), rev’d, 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967); NLRB v. Wheeling Pipe Line, Inc., 229 F.2d 391, 394-395 (8 Cir. 1956); cf. Republic Steel Corp. v. NLRB, 114 F.2d 820 (3 Cir. 1940), modified on other grounds, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6 (1940). , That such dis crimination tends to discourage membership in a labor organization can hardly be doubted. See NLRB v. Great Dane Trailers, Inc., 388 U.S. at 32, 87 S.Ct. 1792. Frick next asserts that, assuming discriminatory conduct, in the absence of employer action which is “inherently destructive\" of the protected rights of employees thei burden is on General Counsel in order to support an allegation that the company violated Section 8(a) (3) to prove that Frick applied its company rule to the strikers with an antiunion motivation, citing NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965) and American Ship Building Co. v. NLRB, 380 U.S. at 300, 85 S.Ct. 955, 13 L.Ed.2d 855. In NLRB v. Great Dane Trailers, Inc., supra, 388 U.S. at 34, 87 S.Ct. at 1798, the Court stated: “From this review of our recent decisions, several principles of controlling importance here can be distilled. First, if it can reasonably be concluded" }, { "docid": "22794074", "title": "", "text": "278, 286 (1965). Congress, howqver, did not intend to make unlawful all acts that might have the effect of discouraging union membership. See American Ship Building Co. v. NLRB, 380 U. S. 300, 311 (1965). Rather, the intention was to forbid only those acts that are motivated by an anti-union animus. See, e. g., NLRB v. Great Dane Trailers, Inc., 388 U. S. 26, 33 (1967); NLRB v. Brown, supra, at 286-287. In determining whether Metropolitan Edison’s conduct constitutes a § 8(a)(3) violation, we are guided by well-established precedent. Where there is direct evidence of an employer’s antiunion motive, the Court has recognized that otherwise legitimate actions may constitute unfair labor practices. See NLRB v. Erie Resistor Corp., 373 U. S. 221, 227 (1963). Where, as here, there is only circumstantial evidence of intent to discriminate, identification of a § 8(a)(3) violation involves a more difficult inquiry. Intent must be inferred from conduct. But an employer may take actions in the course of a labor dispute that present a possible complex of motives, see id., at 228, and it is often difficult to identify the true motive. In these situations, the Court has divided an employer’s conduct into two classes. See NLRB v. Great Dane Trailers, Inc., 388 U. S., at 33-34. Some conduct is so “‘inherently destructive of employee interests’ ” that it carries with it a strong inference of impermissible motive. See id., at 33 (quoting NLRB v. Brown, supra, at 287). In such a situation, even if an employer comes forward with a nondiscriminatory explanation for its actions, the Board “may nevertheless draw an inference of improper motive from the conduct itself and exercise its duty to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy.” 388 U. S., at 33-34. On the other hand, if the adverse effect of the discriminatory conduct on employee rights is “ ‘comparatively slight,’ an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business" }, { "docid": "5364212", "title": "", "text": "the work assignment issue which had been the subject of a long strike some years earlier. Moreover, the union had stated it was ready to strike over this issue “at a time of its own choosing.” The company, engaged in a highly seasonal business, clearly faced the prospect of “unusual harm” from a strike during its peak season when 70 per cent of its annual production is shipped in a two-month period. Under these circumstances we think that the Board’s finding that there was no violation of either Section 8(a) (1) or Section 8(a) (3) was amply supported by the record. Under the tests laid down in Great Dane, we think it clear that the lockout here was not “inherently destructive” of the rights of the company’s employees. Second, we think it equally clear that there were “legitimate and substantial” business interests justifying whatever comparatively slight impact the lockout in this case may have had on employee rights. Since there was no evidence or allegation that the employer acted on the basis of an antiunion motive, there could be no finding of an unfair labor practice. Petition dismissed. Circuit Judge MeGOWAN concurs in the result. . 29U.S.C. § 158(a) (1) and (3) (1964). . See, e. g., NLRB v. Erie Resistor Corp., 373 U.S. 221, 228-229, 83 S.Ct. 1139, 10 L.Ed.2d 908, 94 A.L.R.2d 1147 (1963). But see NLRB v. Insurance Agents’ In ternational Union, 361 U.S. 477, 498, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960). See generally Summers, Labor Law and the Supreme Court: 1964 Term, 75 Yale L.J. 59, 70-74 (1965). . See American Ship Building Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955 (1965) ; Christensen & Svanoe, Motive and Intent in the Commission of Unfair Labor Practices: The Supreme Court and the Fictive Formality, 77 Yale L.J. 1269 (1968) ; Oberer, Lockouts and the Law: The Impact of American Ship Building and Brown Food, 51 Cornell L.Q. 193, 212 (1966). . NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967) ; NLRB v. Great Dane Trailers, Inc., 388 U.S." }, { "docid": "11664029", "title": "", "text": "evidence does not support the Board’s finding that the Company discriminatorily discharged Walker. Compare NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34-35, 87 S.Ct. 1792, 1798, 18 L.Ed. 1027 (1967) (holding that substantial evidence supported the Board’s finding of discriminatory conduct as the Company failed to meet its burden of establishing legitimate motives for its conduct). Accordingly, we do not enforce that portion of the Board’s order requiring the Company to reinstate Walker with backpay. IV. Was Deatherage a Supervisor ? The AU and the Board found that the Association and the Company illegally interfered with the Union in violation of Section 8(a)(2) of the Act, 29 U.S.C. § 158(a)(2), by dealing with the Company Foreman Deatherage as President of the Union. This finding hinged on the factual finding-that Deatherage was a supervisor for the Company. Whether an employee is a supervisor presents an “aging but nevertheless persistently vexing problem.” NLRB v. Security Guard Service, Inc., 384 F.2d 143, 145 (5th Cir. 1967). Section 2(11) of the Act, 29 U.S.C. § 152(11), defines supervisor as any individual having authority in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly direct them, or to adjust their grievances, or effectively to recommend such action, if in conjunction with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Because the statute is disjunctive, an individual who has authority to use independent judgment in the execution of any single listed function is a supervisor. NLRB v. Big Three, etc., 579 F.2d 304, 309, n. 3 (5th Cir. 1978) cert. denied 440 U.S. 960, 99 S.Ct. 1501, 59 L.Ed.2d 773 (1979); Security Guard Service, 384 F.2d at 146-147. The facts of each case determine whether an individual is a supervisor. Trailmobile Division, Pullman, Inc. v. NLRB, 379 F.2d 419, 422 (5th Cir. 1967). We review the Board’s factual findings under the substantial evidence test, but because the gradations of authority within an organization can be so" }, { "docid": "11505653", "title": "", "text": "(1965) ; N.L.R.B. v. Brown, 380 U.S. 278, 85 S. Ct. 980, 13 L.Ed.2d 839 (1965) ; Ameri-can Ship Bldg. Co. v. N.L.R.B., 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965), with N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967) ; and N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967). See Christensen & Svanoe, Motive and Intent in the Commission of Unfair Labor Practices: The Supreme Court and the Fictive Formality, 77 Yale L.J. 1269 (1968). In N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1798 (1967), the Court stated: First, if it can reasonably be concluded that the employer’s discriminatory conduct was “inherently destructive” of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is “comparatively slight,” an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is on the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him. However, reliance by the Company on this principle to establish a need for proof of motive in an 8(a) (1) situation is misplaced. The Great Dane Court, while considering an alleged violation of both sections, expressly stated, “The unfair labor practice charged here is grounded primarily in § 8(a) (3) which requires specifically that the Board find a discrimination and a resulting discouragement of union membership. * * * [T]he finding of a violation normally turns on whether the discriminatory conduct was motivated by an antiunion purpose.” 388 U.S. at 32, 33, 87 S.Ct. at 1796," }, { "docid": "11505652", "title": "", "text": "charges against an employer who locked out or laid off employees during contract negotiations to strengthen its bargaining position. . N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967) ; N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967). . Sections 8(a) (1) and (3) of the Act, 29 U.S.C. §§ 158(a) (1) and (3), provide : (a) It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title] ; * * * * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * * . The practical role of “motive” appears to be diminishing even in the case of § 8(a) (3). Compare Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965) ; N.L.R.B. v. Brown, 380 U.S. 278, 85 S. Ct. 980, 13 L.Ed.2d 839 (1965) ; Ameri-can Ship Bldg. Co. v. N.L.R.B., 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965), with N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967) ; and N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967). See Christensen & Svanoe, Motive and Intent in the Commission of Unfair Labor Practices: The Supreme Court and the Fictive Formality, 77 Yale L.J. 1269 (1968). In N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1798 (1967), the Court stated: First, if it can reasonably be concluded that the employer’s discriminatory conduct was “inherently destructive” of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is" }, { "docid": "10776273", "title": "", "text": "es-toppel principles. Rapais testified that he believed that the arbitration proceedings were final and that the Board failed to explain that when Wydner’s unfair labor charge was withdrawn “without prejudice”, it could be refiled. Ad Art admits that it found no precedent support for such an estoppel theory. The Board found the argument to be “feckless and unpersuasive”. We agree with the Board’s conclusion. . In some instances, unlawful motivation is presumed to exist and no proof is necessary. NLRB v. Great Trailers, Inc., 388 U.S. 26, 33, 87 S.Ct. 1792, 1797, 18 L.Ed.2d 1027 (1967). For example, when an employer’s actions are “inherently destructive” of employees’ section 7 rights, proof of antiunion animus is not necessary. E.g„ NLRB v. Lantz, 607 F.2d 290, 299 (9th Cir. 1979). Actions which are inherently destructive include those that may hinder future bargaining, or those which discriminate against employees solely on the basis of union participation. Portland Willamette Co. v. NLRB, 534 F.2d 1331, 1334 (9th Cir. 1976). The isolated discharge of a single employee is not, however, action “inherently destructive” of section 7 rights. Western Exterminator v. NLRB, 565 F.2d 1114, 1117 n.2 (9th Cir. 1977). . Ad Art correctly notes that this motivation standard applies to alleged violations of section 8(a)(3), 29 U.S.C. § 158(a)(3), and not necessarily to section 8(a)(1) violations. In fact, Ad Art argues that the Board dropped the section 8(a)(3) charge to avoid the necessity of proving that the dominant motive was unlawful. We find, however, that antiunion discharges are routinely prosecuted under different subsections of the Act, any of which may establish them as unfair labor practices. Although obvious differences in language exist between the various subsections, for purposes of our review in this case, we will assume the need for an antiunion animus showing is the same. . The ALJ found that Wydner sometimes displayed a bad work attitude. Wydner falsely accused management of harassment and the union of failing adequately to represent his interests. He grudgingly worked overtime, made several careless work errors and “displayed uncommonly bad manners and judgment in ignoring his steward’s" } ]

[ { "docid": "10193620", "title": "", "text": "with interest at the rate of ten percent. 6. The first time that the plaintiff learned that she could not expect to collect the unpaid amount of the debtor’s notes was when she received notice from this court that the debtor filed a Chapter 7 bankruptcy petition and she was listed as a creditor for $24,500. 7. It is clear that the plaintiff’s loans to the debtor before December, 1983 were influenced by the debtor’s oral representations as to his successful legal practice and his financial ability to repay the loans. The plaintiff was given the impression that the debtor was affluent. Moreover, the plaintiff relied upon the debtor’s promise, which he later broke, that he would repay the loans. However, these facts do not rise to the level of nondischargeability within the meaning of 11 U.S.C. § 523(a)(2)(A) because there was no proof that the debtor did not intend to repay the loans when he borrowed the money from the plaintiff. Indeed, the debtor paid some of the notes until he reached the point where he could make no further payments. Moreover, the plaintiff has failed to sustain her burden of proof as to the allegations addressed to 11 U.S.C. § 523(a)(2)(B) because the representations as to the debtor’s financial status were not in writing. 8.Unfortunately, the plaintiff’s expectations as to the debtor’s financial ability were misplaced. However, whatever intentions the debtor may have had originally towards the plaintiff, nonrepayment was not shown to have been one of them. DISCUSSION The complaint asserts nondischargeability of plaintiff’s debt under 11 U.S.C. § 523(a)(2)(A) and states that the plaintiff made loans to the debtor as a result of his “materially false statements in respect' to his financial condition, which ... were that debtor was totally solvent with income from his law practice sufficient to discharge said loans, the proceeds of which were to be used solely for business purposes and that he had no debts other than to plaintiff and that he would not consider declaring bankruptcy.” However, there was no proof that the alleged misrepresentations as to the debtor’s financial" } ]

[ { "docid": "18802753", "title": "", "text": "and life style, such as marital and family related problems, alcoholism, compulsive gambling and current state of physical and mental health, all of which may affect, directly and indirectly, the debtor’s ability to satisfy his debts and obligations to disclose such matters to [the creditor], unless [the creditor] requested information of this nature. In re Hunter, supra, 780 F.2d at 1580. Plaintiff further claims that there was an understanding relating to usage of the monies in the joint bank account. She asserts that Defendant’s usage of the monies was limited to payment of his Internal Revenue Service debt only. Plaintiff has offered no objective proof in support of her alleged understanding. The nature, extent and purpose of the relationship between Plaintiff and Defendant, as reflected in the record, tends to negate the existence of such restriction. Moreover, on its face, Plaintiff granted Defendant unfettered and untrammeled access to the joint account. Plaintiff loaned monies to Defendant in October 1988 when she refinanced her home and opened up a joint account with Defendant. At that time or earlier, Defendant orally agreed to pay back the loan. A bare promise to be fulfilled in the future, which is not carried out, does not render a consequent debt nondischargeable under § 523(a)(2)(A). Schwalbe v. Gans (In re Gans), 75 B.R. 474, 486 (Bankr.S.D.N.Y.1987). An unfulfilled promise to perform in the future is actionable only in contract. It is insufficient under § 523(a)(2)(A) simply to show that debtor left unfulfilled a prior oral representation or promise. Were this showing sufficient, virtually every oral obligation would give rise to a nondischargeable debt under § 523(a)(2)(A). A fraudulent promise under § 523(a)(2)(A) requires proof that at the time the debtor made it, he or she did not intend to perform as required. Seepes v. Schwartz (In re Schwartz), 45 B.R. 354, 357 (Bankr.S.D.N.Y.1985). In other words, Plaintiff herein must establish that Defendant had no intention of repaying when he obtained the loan and she has failed to do so. We recognize that fraudulent intent, intent to deceive or scienter can be inferred, since direct proof of" }, { "docid": "16456172", "title": "", "text": "retained the funds in his corporation for other uses. In addition, the debtor avoided taking telephone calls from the banks’ representative which might have forced him to acknowledge the disposition of collateral. Discussion And Conclusions As stated previously, these two adversary proceedings were consolidated for trial because of factual similarities between the two transactions which are at issue. The burden of proof rests with the plaintiffs to establish that their debts are excepted from discharge. In this court the standard of proof applied in § 523(a) proceedings is by a preponderance of the evidence. See Combs v. Richardson, 838 F.2d 112, 116 (4th Cir.1988); Seery v. Basham (In re Basham), 106 B.R. 453 (Bankr.E.D.Va.1989). The evidence here reveals that the debtor and his wholly owned corporation while engaged in a used automobile business sold two vehicles which were collateral security for loans from the plaintiffs; instead of using the sale proceeds to repay the loans, the funds were retained by the corporate operator of the business, Higgie’s. In the automobile sales business, a dealer’s sale of automobile collateral without paying the secured lender is known as selling “out of trust”. The debtor operated Higgie’s for approximately 13 months, and during this time he withdrew cash from the corporation as needed for personal use. In fact the evidence establishes that the debtor withdrew more in irregular personal cash withdrawals from the corporation than he did in salary. The plaintiffs ask the court to except their loans from discharge pursuant to 11 U.S.C. §§ 523(a)(2)(A) and (a)(6). Section 523(a)(2)(A). A determination of nondischarge-ability under § 523(a)(2)(A) requires a finding by the court that the debtor obtained money or credit by false pretenses, false representations or actual fraud. The plaintiff must establish the following elements: (1)That the debtor made misrepresentations or committed other fraud, (2) That at the time the debtor knew the conduct was fraudulent, (3) That the debtor’s conduct was with the intention and purpose of deceiving or defrauding the creditor, (4) That the creditor relied on the debt- or’s representations or other fraud and (5) That the creditor sustained loss" }, { "docid": "22948037", "title": "", "text": "payment impossible, fraudulent intent may be inferred”). See e.g., In re Ray, 51 B.R. 454 (Bankr.D.Haw.1985); Matter of Schnore, 13 B.R. 249 (Bankr.W.D.Wis.1981); United Bank of Denver v. Kell, 6 B.R. 695 (Bankr.D.Colo.1980). From the date of the earliest loan, however, Gans made interest payments for approximately four and one-half years and did not file for bankruptcy relief until nearly eight years after the last loan. Had Gans been hopelessly insolvent at the time the loans were made, it is unlikely he could have avoided bankruptcy for so long a period of time. The third category of misrepresentation concerns alleged oral representations by Gans intended to create the false impression that he had the present ability to repay the loans. Recently, Judge Schwartzberg of this district had occasion to consider this form of misrepresentation. In re Schwartz, 45 B.R. 354 (Bankr.S.D.N.Y.1985). Plaintiff made several loans to a debtor-attorney in the belief that he was financially responsible and would repay the debt. Although that court found it “clear” that plaintiff had been “influenced by the debtor’s oral representations as to his successful legal practice and his financial ability to repay the loans,” it nevertheless concluded that these facts did not “rise to the level of nondischargeability within the meaning of 11 U.S.C. § 523(a)(2)(A)” because this subsection “expressly excludes from nondischargeable false pretenses, false representations, or actual fraud any ‘statement respecting the debtor’s ... financial condition....’” Id. at 356 (emphasis added). As that court observed in an earlier case: Oral misrepresentations or pretenses as to the financial condition of the debtor or an insider are expressly excluded from nondischargeability under subsection (A) in § 523(a)(2) because subsection (B) requires that such misrepresentations as to the debtor’s or an insider’s financial condition must result from the “use of a statement in writing.” In re Kiernan, 17 B.R. 362, 365 (Bankr.S.D.N.Y.1982). An oral misrepresentation of financial condition is not contemplated by subsection (A) of Section 523(a)(2). See Engler v. Van Steinburg, 744 F.2d 1060, 1060 (4th Cir.1984); Blackwell v. Dabney, 702 F.2d 490, 491 (4th Cir.1983); In re Blackburn, 16 C.B.C.2d 83, 92," }, { "docid": "17376509", "title": "", "text": "they never agreed to transfer the Lot to the LLC, and intended to deed the Lot to the purchaser once the House sold. Because the House was never sold and the Debtors were unable to make their Loan payments, the lender ultimately foreclosed on its security interest in the Lot and the House. In August of 2008, the Plaintiffs filed a lawsuit against the Debtors in Benton County Court for breach of contract, dissolution and liquidation, specific performance, constructive trust, restitution and unjust enrichment. The case was stayed upon the Debtors’ bankruptcy filing on June 20, 2010. II. DISCUSSION A. False Representation Under § 523(a)(2)(A) To obtain a determination that a debt is non-dischargeable under Section 523(a)(2)(A), a creditor must prove five discrete elements: 1) that the debtor made a representation; 2) that the debtor knew the representation was false at the time it was made; 3) that the debtor made the representation deliberately and with the intention and purpose of deceiving the creditor; 4) that the creditor relied on the representation; and 5) that the creditor sustained the alleged loss as the proximate result of the representation having been made. In re Guske, 243 B.R. 359, 362 (8th Cir. BAP 2000). The standard of proof for each element is the preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). A promise to pay a debt in the future is not a misrepresentation merely because the debtor fails to do so; the creditor must prove that the debtor, when he said he would pay the debt, had no intention of doing so. In re Church, 328 B.R. 544, 547 (8th Cir. BAP 2005). Any evidence presented must be viewed consistent with the congressional intent that exceptions to discharge be narrowly construed against the creditor and liberally against the debtor in order to provide the debtor with comprehensive relief from the burden of his indebtedness. In re Cross, 666 F.2d 873, 879-80 (5th Cir.1982). The Debtors’ fraudulent representation about which the Plaintiffs are complaining is not readily apparent. Arguably, it could have been" }, { "docid": "18763170", "title": "", "text": "as collateral, the plaintiffs would not have guaranteed the note with Citizens. The next element which must be shown is that the debtor intended to deceive the plaintiffs with his representations. “As for the scienter element of a section 523(a)(2)(A) claim, an intent to deceive may logically be inferred from a false representation which the debtor knows or should know will induce another to make a loan.” Kimzey, 761 F.2d at 424. In the Balzano ease, the court found that the creditor had failed to establish fraudulent intent on the part of the debtor. Specifically, the court ruled that: We recognize that fraudulent intent, intent to deceive or scienter can be inferred, since direct proof of state of mind is rarely available. Plaintiff, however, errs in assuming fraudulent intent can be presumed. Fraudulent intent may be inferred; it cannot be presumed. Such inference is negated, where, as here, the Defendant made payment for approximately a year, and filed his Chapter 7 petition only after he reached the point where he could no longer do so and was unsuccessful in negotiations with Plaintiff to reduce the payments. Where a debtor makes payment to the lender, courts will consider this evidence as indicative of a debtor’s lack of fraudulent intent.... Trumbull Building Center, Inc. v. Buttendorf (In re Buttendorf), 11 B.R. 558, 561 (Bankr.D.Vt.1981) (“His promise to make payment to the Plaintiff appeared to be in good faith but, like all debtors who find themselves in financial straits, hope sprung eternal and he was looking at the light at the end of the tunnel which was not visible. He was thwarted in his efforts by continuing reverses.”). Id. at 531. The plaintiffs also specified that had the Mill not been pledged as collateral, they would not have executed letters of credit. The debtor was aware of the plaintiffs’ feeling since he arranged the financing with Regional. Thus, the Court finds that the plaintiffs have established the debtor intended to deceive the plaintiffs by failing to reveal the pertinent fact that the Mill would not be pledged as collateral when the note was" }, { "docid": "2302718", "title": "", "text": "could not obtain financing. The property was later sold at a lesser price. Although plaintiffs mortgage loan was repaid upon sale of the condo, debtor has not repaid the note of November 4, 1992. Debtor is obligated to plaintiff under the note of November 4,1992, for the face amount of the note plus accrued interest. Debtor has made no false representations to plaintiff with respect to the loan or its repayment. Discussion And Conclusions 11 U.S.C. § 523(a)(2) provides an exception to discharge of a debt for ... property ... to the extent obtained by — (A) false pretenses, a false representation, or actual fraud ... There can be no question here that debtors obtained property from the plaintiffs. The other necessary elements to a determination of nondischargeability under § 523(a)(2)(A) are (1) That the debtor made misrepresentations, (2) That at the time the debtor knew the representations were false, (3) That the debtor made the misrepresentations with the intention and purpose of deceiving the creditor, (4) That the creditor relied on the representations, and (5) That the creditor sustained loss and damage as the proximate result of the misrepresentations. See Sweet v. Ritter Finance Co., 263 F.Supp. 540, 543 (W.D.Va.1967). With respect to the issuance of a bad check, most courts hold that this is not in itself a sufficient act to establish that a resulting debt is excepted from discharge. The creditor must still establish that the debtor had the intention to deceive the creditor at the time the check was given. Seery v. Basham (In re Basham), 106 B.R. 453, 457 (Bankr.E.D.Va.1989). In fact, since the giving of a bad check may amount to no more than a promise to repay, a bad check case can be inherently weak for fraud. In order to prevail, the creditor must establish that the debtor clearly made false representations at the time of the transaction indicating that the check is the equivalent of cash or that the debtor otherwise acted in a fraudulent or reckless manner. See In re Basham, 106 B.R. at 457. Unless these factors are present, the" }, { "docid": "17620187", "title": "", "text": "lawsuits against her that could have, or did, give rise to judgment liens, any failure to disclose is immaterial, as the transaction proposed by the debtor never took place. Second, when Mr. Carto agreed to enter into a loan agreement with Ms. Oakley, he did so out of his wife’s friendship with Ms. Oakley, and based solely upon her promise to repay him within one year. He requested no other terms in the promissory note; nor did he review the note before tendering payment to Ms. Oakley. N.T. at 143, 150. In fact, he tendered the first of the two loan checks before Ms. Oakley even gave him a copy of the promissory note. In other words, whatever provisions were included in the promissory note, the only representation that Mr. Carto relied upon was the debtor’s oral promise to repay within one year. N.T. at 143. It is clear that Ms. Oakley did not comply with the various terms of the promissory note she drafted. However, the plaintiff presented no evidence that in March 2011, she had no intention of repaying Mr. Carto. The evidence reflects that after March 2011, the debtor made some effort to have the Weatham property sold so her interest in it would be liquidated. If she did not intend to repay Mr. Carto in March 2011, she would not have done so. Accordingly, although Mr. Carto proved that the debtor breached various provisions of her promissory note, he did not meet his burden of proof that she acted fraudulently in March 2011 when she promised to repay him within one year, or that he actually relied upon any of her other representations and omissions. Thus, he is not entitled to relief under section 523(a)(2)(A). An appropriate order will be entered. ORDER AND NOW, this 30th day of December 2013, for the reasons given in the accompanying memorandum, it is hereby ordered that the plaintiffs objection to discharge under 11 U.S.C. § 727(a)(4) is sustained, and the debtor, Annette Oakley, is denied a chapter 7 bankruptcy discharge. . The plaintiffs complaint refers 11 U.S.C. § 727(c)(2)," }, { "docid": "3827662", "title": "", "text": "reasonable expectation that [Debt- or] would be returning to the United States. Affirmation of Joseph Latona in Support of Motion for Summary Judgment, dated August 20, 1992, at 2; see 11 U.S.C. § 523(a)(2)(A) (1994). This single argument by Plaintiff cannot serve to satisfy the five elements that all plaintiffs must establish in order for a court to grant judgment determining that a debt is non-dischargeable pursuant to section 523(a)(2)(A) of the Bankruptcy Code. Kovitz v. Tesmetges (In re Tesmetges), 74 B.R. 911, 914 (Bankr.E.D.N.Y.1987), aff'd, 86 B.R. 21 (E.D.N.Y.1988), aff'd, 862 F.2d 304 (2d Cir. 1988); Kotan v. Austin (In re Austin), 132 B.R. 1, 3 (Bankr.E.D.N.Y.1991). The five elements are: (1) The debtor must make an express or implied false representation; (2) The representation must be made with knowledge that it was false at the time it was made; (3) The false representation must be made with the intent to deceive; (4) The creditor must have reasonably relied upon the debtor’s misrepresentation(s); and finally, (5) The creditor must establish that it was damaged. Kovitz 74 B.R. at 914; Kotan 132 B.R. at 3. The standard is by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); Citibank v. Wiener (In re Wiener), 144 B.R. 17, 20 (Bankr.E.D.N.Y.1992); First Dep. Nat’l Bank v. Pursley (In re Pursley), 158 B.R. 664, 667 (Bankr.N.D.Ohio 1993). Plaintiff plainly has the burden of showing that there is no genuine material issue of fact as to these elements and that it is entitled to judgment as a matter of law. Jackson v. Radcliffe, 795 F.Supp. 197, 203 (S.D.Tex.1992). While the issue of Debtor’s liability for the credit card purchases may be summarily resolved against Debtor based upon all documents before the Court, whether the liability is non-dischargeable for having been incurred through false pretenses or actual fraud cannot be. Plaintiff has not adduced any evidence that an implied false statement was made or that the credit card debts were incurred with fraudulent pretenses. Whether Debtor had the financial ability to satisfy his debt at the" }, { "docid": "18802755", "title": "", "text": "state of mind is rarely available. Plaintiff, however, errs in assuming fraudulent intent can be presumed. Fraudulent intent may be inferred; it cannot be presumed. Such inference is negated where, as here, the Defendant made payments for approximately a year, and filed his Chapter 7 petition only after he reached the point where he could no longer do so and was unsuccessful in negotiations with Plaintiff to reduce the payments. Where a debtor makes payments to the lender, courts will consider this evidence as indicative of a debtor's lack of fraudulent intent. In re Gans, supra, 75 B.R. at 487; In re Schwartz, supra, 45 B.R. at 357; Trumbull Building Center, Inc. v. Buttendorf (In re Buttendorf), 11 B.R. 558, 561 (Bankr.D.Vt.1981) (“His promise to make payment to the Plaintiff appeared to be in good faith but, like all debtors who find themselves in financial straits, hope sprung eternal and he was looking at the light at the end of the tunnel which was not visible. He was thwarted in his efforts by continuing reverses.”). Based on the foregoing, this Court is satisfied that Plaintiff failed to establish with the requisite degree of proof the false representation, reasonable reliance and intent to deceive elements of her § 523(a)(2)(A) claim of nondischargeability. Having so determined, we now turn to Plaintiff’s contention that the subject debt is nondischargeable under § 523(a)(4). B. The 11 U.S.C. § 523(a)(4) Exception To Dischargeability Section 523(a)(4) provides that a discharge under § 727 does not discharge a debtor from any debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny”. This provision sweeps within its penumbra two distinct types of debtors—fiduciaries and nonfiduci-aries. The phrase “while acting in a fiduciary capacity” does not qualify the categories of “embezzlement” or “larceny”. Accordingly, the exception to dischargeability granted debts arising out of fraud or defalcation must involve fiduciaries; while the exception arising out of embezzlement or larceny may involve nonfiduciaries. Moonan v. Bevilacqua (In re Bevilacqua), 53 B.R. 331, 334 (Bankr.S.D.N.Y.1985); Moreno v. Schwartz (In re Schwartz), 36 B.R. 355, 358 (Bankr.E.D.N.Y.1983); Great American" }, { "docid": "18763166", "title": "", "text": "the debtor obtained the money through representations known by the debtor to be false or which were made with such reckless disregard as to constitute a willful misrepresentation. In the Kimzey case, the debtor had argued that the creditor had lent him money to purchase the items to supply sales orders. However, based on the evidence presented by the creditor, the court found that the creditor had agreed to lend the debtor money for accounts receivable, that is for money due from customers to whom merchandise had already been shipped. The court then found that presenting the bank with purchase orders for merchandise which had not yet been shipped constituted a false representation for purposes of section 523(a)(2)(A). The creditor challenged the dischargeability of a debt in the case of Farina v. Bolzano (In re Balzano), 127 B.R. 524 (Bkrtcy.E.D.N.Y.1991). The creditor obtained funds by executing a second mortgage on her home and then deposited them into a joint account to which the debtor had unlimited access. According to the creditor, the debtor promised to marry her, indicated that the funds would only be used to pay his debt to the IRS, and promised to repay the loan. The court rejected the section 523(a)(2)(A) argument, finding: Plaintiff loaned monies to Defendant in October 1988 when she refinanced her home and opened up a joint account with Defendant. At that time or earlier, Defendant orally agreed to pay back the loan. A bare promise to be fulfilled in the future, which is not carried out, does not render a consequent debt nondischargeable under § 523(a)(2)(A). Schwalbe v. Gans (In re Gans), 75 B.R. 474, 486 (Bankr.S.D.N.Y.1987). An unfulfilled promise to perform in the future is actionable only in contract. It is insufficient under § 523(a)(2)(A) simply to show that debtor left unfulfilled a prior oral representation ,or promise. Were this showing sufficient, virtually every oral obligation would give rise to non-dischargeable debt under § 523(a)(2)(A). A fraudulent promise under § 523(a)(2)(A) requires proof that at the time the debtor made it, he or she did not intend to perform as required." }, { "docid": "3827661", "title": "", "text": "with his prior sworn statements. Indeed, Debtor never put the authenticity of his own signature in issue. The mere allegations' by Debtor that the charges were not his will not suffice to defeat Plaintiffs Motion. In light of all of the foregoing, and consistent with the applicable law and the standard with which we adjudicate a summary judgment motion, the Court holds that the signatures upon the sales receipts detailing the uses of Debtor’s Visa credit card are genuine and authentic and that Debtor is liable for all charges thereon. B. Dischargeability of the Debt The second issue is whether summary judgment determining that the debt is non-dischargeable is appropriate. See 11 U.S.C. § 523(a) (1994). The sole argument in Plaintiffs Motion papers in support of its contention that the debt is non-dischargeable, provides: [B]y making purchases far in excess of the credit limit, the said credit was obtained by false pretenses or actual fraud_ Clearly, there was no reasonable expectation of repayment and the question is open as to whether there was even a reasonable expectation that [Debt- or] would be returning to the United States. Affirmation of Joseph Latona in Support of Motion for Summary Judgment, dated August 20, 1992, at 2; see 11 U.S.C. § 523(a)(2)(A) (1994). This single argument by Plaintiff cannot serve to satisfy the five elements that all plaintiffs must establish in order for a court to grant judgment determining that a debt is non-dischargeable pursuant to section 523(a)(2)(A) of the Bankruptcy Code. Kovitz v. Tesmetges (In re Tesmetges), 74 B.R. 911, 914 (Bankr.E.D.N.Y.1987), aff'd, 86 B.R. 21 (E.D.N.Y.1988), aff'd, 862 F.2d 304 (2d Cir. 1988); Kotan v. Austin (In re Austin), 132 B.R. 1, 3 (Bankr.E.D.N.Y.1991). The five elements are: (1) The debtor must make an express or implied false representation; (2) The representation must be made with knowledge that it was false at the time it was made; (3) The false representation must be made with the intent to deceive; (4) The creditor must have reasonably relied upon the debtor’s misrepresentation(s); and finally, (5) The creditor must establish that it was damaged." }, { "docid": "18802754", "title": "", "text": "or earlier, Defendant orally agreed to pay back the loan. A bare promise to be fulfilled in the future, which is not carried out, does not render a consequent debt nondischargeable under § 523(a)(2)(A). Schwalbe v. Gans (In re Gans), 75 B.R. 474, 486 (Bankr.S.D.N.Y.1987). An unfulfilled promise to perform in the future is actionable only in contract. It is insufficient under § 523(a)(2)(A) simply to show that debtor left unfulfilled a prior oral representation or promise. Were this showing sufficient, virtually every oral obligation would give rise to a nondischargeable debt under § 523(a)(2)(A). A fraudulent promise under § 523(a)(2)(A) requires proof that at the time the debtor made it, he or she did not intend to perform as required. Seepes v. Schwartz (In re Schwartz), 45 B.R. 354, 357 (Bankr.S.D.N.Y.1985). In other words, Plaintiff herein must establish that Defendant had no intention of repaying when he obtained the loan and she has failed to do so. We recognize that fraudulent intent, intent to deceive or scienter can be inferred, since direct proof of state of mind is rarely available. Plaintiff, however, errs in assuming fraudulent intent can be presumed. Fraudulent intent may be inferred; it cannot be presumed. Such inference is negated where, as here, the Defendant made payments for approximately a year, and filed his Chapter 7 petition only after he reached the point where he could no longer do so and was unsuccessful in negotiations with Plaintiff to reduce the payments. Where a debtor makes payments to the lender, courts will consider this evidence as indicative of a debtor's lack of fraudulent intent. In re Gans, supra, 75 B.R. at 487; In re Schwartz, supra, 45 B.R. at 357; Trumbull Building Center, Inc. v. Buttendorf (In re Buttendorf), 11 B.R. 558, 561 (Bankr.D.Vt.1981) (“His promise to make payment to the Plaintiff appeared to be in good faith but, like all debtors who find themselves in financial straits, hope sprung eternal and he was looking at the light at the end of the tunnel which was not visible. He was thwarted in his efforts by continuing reverses.”)." }, { "docid": "1563128", "title": "", "text": "is there evidence in this record to support the proposition that the debtor solicited or encouraged the other sales reps to violate their non-compete clauses. The fact that the debtor and the three sales reps who were fired or resigned after Reath resigned in November became employed by the same sales repping organization six weeks later does not provide sufficient basis to establish a “deceit, artifice, trick or design” employed by the debtor that would be reflective of actual fraud. RecoverEdge LP, 44 F.3d at 1293. Even if the plaintiff successfully established that the debtor breached his Agreement with the Company in some way, or breached his duty to the Company as a Sales Manager, such breaches would not necessarily constitute false representations, false pretenses, or actual fraud. Without a demonstration of an intent to deceive, proof of a breach of contract cannot support a section 523(a)(2)(A) non-dis-chargeability finding. A bare promise to be fulfilled in the future, which is not carried out, does not render a consequent debt nondischargeable under § 523(a)(2)(A). Schwalbe v. Gans (In re Gans), 75 B.R. 474, 486 (Bankr.S.D.N.Y.1987). An unfulfilled promise to perform in the future is actionable only in contract. It is insufficient under § 523(a)(2)(A) simply to show that debtor left unfulfilled a prior oral representation or promise. Were this showing sufficient, virtually every oral obligation would give rise to a non-dischargeable debt under § 523(a)(2)(A). A fraudulent promise under § 523(a)(2)(A) requires proof that at the time the debtor made it, he or she did not intend to perform as required. Seepes v. Schwartz (In re Schwartz), 45 B.R. 354, 357 (S.D.N.Y.1985). In other words, Plaintiff herein must establish that Defendant had no intention of repaying when he obtained the loan and she has failed to do so. We recognize that fraudulent intent, intent to deceive or scienter can be inferred, since direct proof of state of mind is rarely available. Plaintiff, however, errs in assuming fraudulent intent can be presumed. Fraudulent intent may be inferred; it cannot be presumed. In re Balzano, 127 B.R. 524, 531 (Bankr.E.D.N.Y.1991). Here, there is" }, { "docid": "2302717", "title": "", "text": "interest at two and one-half percent per month and was payable in 45 days. Simultaneously with the making of the loan, debtor gave plaintiff a personal check for $8,700.00 drawn on Dominion Bank N.A. The check was post dated December 18, 1992, and was intended by plaintiff to be used to repay the loan when it became due. Although debtor did not have sufficient funds in his checking account to cover the post dated check when the loan was made, he told plaintiff at the time that he would repay plaintiff from the proceeds of his condo sale. On November 30, 1992, debtor closed his Dominion Bank cheeking account and moved his account to another bank. He told plaintiff that the account had been moved. When debtor’s note became due plaintiff deposited debtor’s post dated cheek for collection at Dominion Bank. When the check was returned unpaid, he redeposited it two additional times before receiving notice from Dominion that debtor’s account was closed. Debtor’s contract to sell the Florida condo fell through because the purchaser could not obtain financing. The property was later sold at a lesser price. Although plaintiffs mortgage loan was repaid upon sale of the condo, debtor has not repaid the note of November 4, 1992. Debtor is obligated to plaintiff under the note of November 4,1992, for the face amount of the note plus accrued interest. Debtor has made no false representations to plaintiff with respect to the loan or its repayment. Discussion And Conclusions 11 U.S.C. § 523(a)(2) provides an exception to discharge of a debt for ... property ... to the extent obtained by — (A) false pretenses, a false representation, or actual fraud ... There can be no question here that debtors obtained property from the plaintiffs. The other necessary elements to a determination of nondischargeability under § 523(a)(2)(A) are (1) That the debtor made misrepresentations, (2) That at the time the debtor knew the representations were false, (3) That the debtor made the misrepresentations with the intention and purpose of deceiving the creditor, (4) That the creditor relied on the representations, and" }, { "docid": "1563129", "title": "", "text": "Gans (In re Gans), 75 B.R. 474, 486 (Bankr.S.D.N.Y.1987). An unfulfilled promise to perform in the future is actionable only in contract. It is insufficient under § 523(a)(2)(A) simply to show that debtor left unfulfilled a prior oral representation or promise. Were this showing sufficient, virtually every oral obligation would give rise to a non-dischargeable debt under § 523(a)(2)(A). A fraudulent promise under § 523(a)(2)(A) requires proof that at the time the debtor made it, he or she did not intend to perform as required. Seepes v. Schwartz (In re Schwartz), 45 B.R. 354, 357 (S.D.N.Y.1985). In other words, Plaintiff herein must establish that Defendant had no intention of repaying when he obtained the loan and she has failed to do so. We recognize that fraudulent intent, intent to deceive or scienter can be inferred, since direct proof of state of mind is rarely available. Plaintiff, however, errs in assuming fraudulent intent can be presumed. Fraudulent intent may be inferred; it cannot be presumed. In re Balzano, 127 B.R. 524, 531 (Bankr.E.D.N.Y.1991). Here, there is no support for either the proposition that the debtor did not intend to perform his duties as an Independent Contractor or as the Sales Manager for the Company when he agreed to act in those capacities, or that he intended to deceive the plaintiff in any way by his activities. While Reath may have had a “continuing obligation” to abide by his employment agreements as a matter of contract law, any breach by the debtor of his contractual obligations to the plaintiff does not give rise to the necessary intent to deceive by the debtor which is required under section 523(a)(2)(A). Plaintiff has failed to meet her burden to show that the defendant’s debt to her, if any, should be declared non-dischargeable under 11 U.S.C. § 523(a)(2)(A). 2. Section 523(a) (6) Section 523(a)(6) provides that: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt- 16) for willful and malicious injury by the debtor to another entity or to the property of" }, { "docid": "18763167", "title": "", "text": "marry her, indicated that the funds would only be used to pay his debt to the IRS, and promised to repay the loan. The court rejected the section 523(a)(2)(A) argument, finding: Plaintiff loaned monies to Defendant in October 1988 when she refinanced her home and opened up a joint account with Defendant. At that time or earlier, Defendant orally agreed to pay back the loan. A bare promise to be fulfilled in the future, which is not carried out, does not render a consequent debt nondischargeable under § 523(a)(2)(A). Schwalbe v. Gans (In re Gans), 75 B.R. 474, 486 (Bankr.S.D.N.Y.1987). An unfulfilled promise to perform in the future is actionable only in contract. It is insufficient under § 523(a)(2)(A) simply to show that debtor left unfulfilled a prior oral representation ,or promise. Were this showing sufficient, virtually every oral obligation would give rise to non-dischargeable debt under § 523(a)(2)(A). A fraudulent promise under § 523(a)(2)(A) requires proof that at the time the debtor made it, he or she did not intend to perform as required. Seepes v. Schwartz (In re Schwartz), 45 B.R. 354, 357 (Bankr.S.D.N.Y.1985). In other words, Plaintiff must establish that Defendant had no intention of repaying when he obtained the loan and she has failed to do so. Id. at 531. Finally, in the Mercado case discussed above, erroneous statements regarding the amount for which a project could be completed and the omission of the fact that the property was subjected to liens which were in default were held to constitute false statements pursuant to section 523(a)(2)(A). Mercado, 144 B.R. at 883. See also McMillen v. Jarmul (In re Jarmul), 150 B.R. 134 (Bkrtcy.W.D.Pa.1993); Visotsky v. Woolley (In re Woolley), 145 B.R. 830 (Bkrtcy.E.D.Va.1991); Sunbank/North Florida National Assoc. v. Podzamsky (In re Podzamsky), 141 B.R. 770 (Bkrtcy.M.D.Fla.1992). The failure to disclose a material fact can constitute misrepresentation. In re Guy, 101 B.R. 961 (Bkrtcy.N.D.Ind.1988). “[Fjraud may consist of silence, concealment or intentional non-disclosure of a material fact, as well as affirmative misrepresentation of a material fact.” Id. at 978. In the case at bar, the plaintiffs contend" }, { "docid": "1078203", "title": "", "text": "for money, property, services, or an extension, renewal or refinancing of credit, to the extent obtained by ... (A) false pretenses, a false representation, or actual fraud ... This exception to discharge furthers the policy that the honest but unfortunate debtor obtains a fresh start while the dishonest debtor does not benefit from his wrongdoing. Grogan v. Garner, — U.S. -, -, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991); In re Haig, 135 B.R. 698, 699 (Bankr.Fla.1991). In order to meet its burden to obtain an exception to discharge, a creditor must prove each of the following elements by a preponderance of evidence: (1) the debtor obtained money through a false representation; (2) the representation was known by the debtor to be false; (3) the representation was made with the purpose and intention of deceiving the creditor; (4) the creditor relied on the representation and the reliance was reasonably founded; and (5) the creditor sustained a loss as a result of the representation. Grogan v. Garner, — U.S. at -, 111 S.Ct. at 659; In re Tesmetges, 74 B.R. 911 (Bankr.E.D.N.Y.1987), aff'd In re Tesmetges, 86 B.R. 21 (Bankr.E.D.N.Y.1988). The lines of credit extended to the Defendant in the present case are analogous to cases where credit is extended by the use of credit cards. Therefore, the facts are to be analyzed similarly. With respect to most of the Debtor’s accounts, credit is extended on an ongoing basis, and is not to exceed a stated maximum. A minimum payment on the credit account is required each month. In examining Citibank’s allegation that Wiener made false representations, it must be kept in mind that the creditor has the burden to establish that at the time the debtor obtained the loans, he had no intention of repaying them. In re Schwartz, 45 B.R. 354, 357 (S.D.N.Y.1985), In re Gans, 75 B.R. 474 (Bankr.S.D.N.Y.1987). Since proving the debtor’s actual intent in the context of drawing on an open line of credit or the use of credit cards is difficult, courts have inferred the debtor’s intent to deceive from circumstantial evidence. In re" }, { "docid": "22948036", "title": "", "text": "1986). Plaintiffs offered no proof to the contrary. Even assuming Gans did fail to disclose the actual state of his financial condition at the time the loans were made, it is still unclear whether or not this failure to disclose would in itself constitute a misrepresentation within the meaning of Section 523(a)(2)(A). There is little evidence concerning the extent of Gans’ financial difficulties at the time he obtained the loans from Marlowe. Gans did testify as to the foreclosure proceeding against his home and the existence of more than $180,000.00 in money judgments that had been filed against him at the time the loans were made. It is unclear, however, whether these financial difficulties were so severe as to prevent Gans from repaying the loans. As Collier observes, the courts will not require an overt misrepresentation where the debtor’s “hopeless insolvency” at the time monies were obtained would make repayment impossible. Collier on Bankruptcy If 523.08 at 523-49 (15th ed. 1987); Matter of Boydston, 520 F.2d 1098, 1101 (5th Cir.1975) (where “hopeless insolvency ... makes payment impossible, fraudulent intent may be inferred”). See e.g., In re Ray, 51 B.R. 454 (Bankr.D.Haw.1985); Matter of Schnore, 13 B.R. 249 (Bankr.W.D.Wis.1981); United Bank of Denver v. Kell, 6 B.R. 695 (Bankr.D.Colo.1980). From the date of the earliest loan, however, Gans made interest payments for approximately four and one-half years and did not file for bankruptcy relief until nearly eight years after the last loan. Had Gans been hopelessly insolvent at the time the loans were made, it is unlikely he could have avoided bankruptcy for so long a period of time. The third category of misrepresentation concerns alleged oral representations by Gans intended to create the false impression that he had the present ability to repay the loans. Recently, Judge Schwartzberg of this district had occasion to consider this form of misrepresentation. In re Schwartz, 45 B.R. 354 (Bankr.S.D.N.Y.1985). Plaintiff made several loans to a debtor-attorney in the belief that he was financially responsible and would repay the debt. Although that court found it “clear” that plaintiff had been “influenced by the debtor’s" }, { "docid": "22948046", "title": "", "text": "last loan to Gans on June 7, 1977 and the date on which Gans filed his Chapter 7 petition. The plaintiffs also failed to submit clear and convincing proof that Gans, at the time he received the loans from Marlowe, was not in a position to repay them. The pendency of a foreclosure proceeding and the existence of money judgments in the approximate amount of $180,000.00 against Gans, without more, does not establish that he was hopelessly insolvent. The record reveals no fraudulent intent at or prior to the time the loans were made, nor any bad faith in Gans’ dealings with Marlowe. There is no evidence that Gans’ obligation to repay the loans to Marlowe was made with the intent not to perform. To the contrary, the evidence, for example, shows that Gans made interest payments on the loans for a substantial period of time before he defaulted. Payments on the first loan were made for more than four years, whereas payments on the last loan were made for approximately three years before they ceased. In Matter of Schnore, 13 B.R. 249 (Bankr.W.D.Wis.1981) the debtor was held to have defrauded his creditors because he was found to have been insolvent at the time the liabilities were incurred and thus could not have reasonably believed that he would be able to meet these obligations. The court also noted the debtor’s “failure to make any payment whatsoever” as being “strong evidence that he did not intend to pay” his creditors. Id. at 257. In contrast, where a debtor subsequently does make payments to the lender, the court will consider this evidence as indicative of the debtor’s lack of fraudulent intent. See, e.g., In re Schwartz, 45 B.R. 354 (Bankr.S.D.N.Y.1985). Nor can this court find that the attorney-client relationship between Gans and Marlowe, coupled with an alleged conflict of interest relating to the financial transactions, form a sufficient basis from which fraudulent intent can be inferred. Inferring fraud based on the relationship of the parties has been rejected by this district as a “novel assertion.” Matter of Barton, 465 F.Supp. at 921." }, { "docid": "13598627", "title": "", "text": "767 (1979). Section 523(a)(2) provides for the nondischargeability of debts incurred through false pretenses, a false representation, or actual fraud. The Eighth Circuit has determined the standard to be used in finding fraud under 11 U.S.C. § 523(a)(2)(A). See Ophaug v. Thul (In re Ophaug), 827 F.2d 340, 342 (8th Cir.1987). Ophaug holds that only actual fraud, and not fraud implied in law, satisfies section 523(a)(2)(A). Id. at 342 n. 1. In order to have a debt held nondis-ehargeable under section 532(a)(2)(A), the creditor must prove that: (1) the debtor made representations; (2) at the time the representations were made the debtors knew them to be false; (3) the debtors made the representations with the intention or purpose of deceiving creditors or the Court; (4) there was reliance on those representations; and (5) injury was sustained as a result of those representations. Id. Both plaintiff and Marvin Johnson testified that plaintiff willingly loaned money to Mr. Johnson. She never asked him why he needed the funds. She never asked for any collateral. She never established any repayment terms. I cannot find debtor made any misrepresentations to plaintiff if both parties concur that debtor never made any representations at all. Mr. Johnson also testified that he intended to repay plaintiff with the proceeds of the farming operation. It was only when he was forced to stop farming that he filed bankruptcy. He further testified that Mrs. Johnson’s health was a major factor in his decision to cease farming and move into the city where Mrs. Johnson had easier access to medical treatment. Further, since plaintiff made no inquiry about why debtor needed money, she could not have relied on debtor’s representations. For the reasons stated above, I find that Marvin Johnson did not obtain funds from plaintiff by false pretenses, false representation, or actual fraud. B. Breach of Fiduciary Duty Section 523(a)(4) excepts from discharge any debt for fraud or defalcation while acting in a fiduciary capacity. 11 U.S.C. § 523(a)(4). Plaintiff claims that Marvin Johnson held her power of attorney during all the transactions which gave rise to the debt" } ]

[ { "docid": "16574184", "title": "", "text": "for purpose of trial, there appears to be no substantial inconvenience to plaintiffs in granting this motion to transfer. Motion granted. . 28 U.S.C.A § 1391(a). . Id. § 1391(c). . Id. § 1404(a). . See H.R.Rep. No. 2646, 79th Cong. 2d Sess. p. A 127. . 36 Stat. 1103 (1911), 28 U.S.C.A. former § 119 (1940). . 28 U.S.C.A. § 1404(b). .Cf. Brown v. Heinen, D.C.Minn., 61 F.Supp. 563. . Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. . Cf. N.Y.Civil Practice Act § 187. . Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, 330; certiorari denied 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624. . 330 U.S. 501, 508-509, 67 S.Ct. 839, 91 L.Ed. 1055. . Id., 330 U.S. at 508, 67 S.Ct. at page 843; Ford Motor Co. v. Ryan, supra, 182 F.2d at page 330. . See Smith v. Crocker, 1st Dept., 14 App.Div. 245, 43 N.Y.S. 427, 429, affirmed memorandum, 162 N.Y. 600, 57 N.E 1124; Wedemann v. United States Trust Co., 258 N.Y. 315, 317-318, 179 N.E 712, 79 A.L.R. 1320; Gregonis v. Philadelphia & R. C. & I. Co., 235 N.Y. 152, 160, 139 N.E 223, 32 A.L.R. 1. . Rederiet Ocean Aktieselskab v. W. A. Kirk & Co., Sup., 51. N.Y.S.2d 565; Osborne v. Banco Aleman-Antioqueno, Mun. Ct., 176 Misc. 664, 29 N.Y.S.2d 236. . Hagen v. Viney, 124 Fla. 747, 169 So. 391; Trojan Engineering Corp. v. Green Mountain Power Corp., 293 Mass. 377, 200 N.E. 117; Quigley Co. v. Asbestos Ltd., 134 N.J.Eq. 312, 35 A.2d 432. . Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at page 509, 67 S.Ct. at page 843. . Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. . Cf. Adam v. Saenger, 303 U.S. 59, 58 S.Ct. 454, 82 L.Ed. 649. . See Marks v. Fireman's Fund Ins. Co., D.C.S.D.N.Y., 109 F.Supp. 800, 803. . Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. . See Brady v. Black Diamond" } ]

[ { "docid": "20343290", "title": "", "text": "of the interest of justice. I—T—E Circuit Breaker Company v. Regan, supra, (C.A. 8 1965) 348 F.2d 403, l.c. 405 (per curiam). In light of the above considerations, it is concluded that the interest of justice does not favor transfer from the United States District Court for the Western District of Missouri, Western Division, as the most convenient forum for this action. E. The Additional Consideration of Location of Records and Documents The location of records and documents is also a factor that should be considered in determining the proper forum in a motion for transfer under § 1404(a). Gulf Oil Corporation v. Gilbert, supra, 330 U.S. 501, l.c. 508, 67 S.Ct. 839, l.c. 843, 91 L.Ed. 1055, l.c. 1062 (1947); 1 Moore’s Federal Practice ¶ 0.145[5], l.c. 1622 (2d ed. 1979); 15 Wright, Miller & Cooper, Federal Practice And Procedure § 3853, l.c. 277 (1976). But because usually many records, or copies thereof, are easily transported, their location is not entitled to great weight. This is particularly true with the development of photocopying. Ford Motor Co. v. Ryan (C.A. 2 1950) 182 F.2d 329, l.c. 330-331, cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950); 15 Wright, Miller & Cooper, Federal Practice And Procedure § 3853, l.c. 277-278 (1976). Further, as with witnesses (see “The Convenience of Witnesses,” supra, contained in Part (2) of subsection III “C. ‘The Convenience of Parties and Witnesses’ ”), general allegations that a transfer is needed because of the location of books and records are not enough. The moving papers must show the location, difficulty of transportation and importance of the books and records. Colgate-Palmolive Company v. North American Chemical Corporation (S.D.N.Y.1964) 238 F.Supp. 81, l.c. 85; Ruskay v. Reed (S.D.N.Y.1963) 225 F.Supp. 581, l.c. 582; 15 Wright, Miller & Cooper, Federal Practice And Procedure § 3853, l.c. 279 (1976). The plaintiff has failed to make this requisite showing. It is concluded that the location of records and documents in this action does not sufficiently show that the United States District Court for the Eastern District of Virginia, at Alexandria, or" }, { "docid": "21437823", "title": "", "text": "IRVING R. KAUFMAN, District Judge. The-defendants seek to transfer this action to the United States District Court, for the District of New Jersey, sitting at Newark, New Jersey, for the convenience of parties and witnesses and in the interests of justice under the provisions of Title 28, U.S.C. § 1404(a). I shall first deal with the criteria used to determine whether transfer is in order. The required elements for transfer are those enumerated by the Supreme Court in Gulf Oil Corporation v. Gilbert, 1947, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 and by the District Court and the United States Court of Appeals, Second Circuit, in Ferguson v. Ford Motor Company, D.C.S.D.N.Y.1950, 89 F.Supp. 45; Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329, certiorari denied 1950, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624. Generally, the criteria to be considered are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses; ■ arid other practical considerations that make trial of a case easy, expeditious and inexpensive. Dolly Toy Co. v. Bancroft-Rellim Corp., D.C.S.D.N.Y.1951, 97 F.Supp. 531. In order to sustain their position, the' defendants offer the affidavit of their attorney, Daniel Oppenheim, a member of the bar of the State of New Jersey. He asserts that this case should be transferred because: (1) a request will be made at the trial to permit the jury to visit the scene of the accident; (2) the case requires interpretation of New Jersey law since the accident occurred at Route 17, in Ramsey, New Jersey; (3) the individual defendant is a resident of New Jersey and the corporate defendant is incorporated in Ohio but licensed to do business in New Jersey; (4) two New Jersey State troopers will be called to testify; (5) there are seven other witnesses who are residents of New Jersey who witnessed the accident or whose testimony will be material at the trial. Four of the witnesses are residents of New Jersey who come from the towns of Mahwah, Ramsey, New Milford and Cresskill. In" }, { "docid": "21078038", "title": "", "text": "of a copy of the initial pleading setting forth the claim for relief * * *, or within twenty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.” Service of a summons only was made on defendant on July 9, 1952. The complaint was served by mail on August 26. The defendant received it on August 27 and answered it on September 9. On that day it also filed its petition for removal. Clearly the petition was filed within twenty days after receipt of the initial pleading, and the right to remove was not waived by answering and serving a notice to examine the plaintiff. Both motions are in all respects denied. Settle order. . Ford Motor Co. v. Ryan, 2 Cir., 182 F. 2d 329, 330, certiorari denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624. . 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055; Ford Motor Co. v. Ryan, supra, note 1. . 330 U.S. at page 508, 67 S.Ot. at page 843. . Ford Motor Co. v. Ryan, supra, note 1, 182 F.2d at page 330. . Ford Motor Co. v. Ryan, supra, note 1, 182 F.2d at page 332. . See Skultety v. Pennsylvania R. Co., D.C.N.Y., 91 F.Supp. 118. . Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 524-525, 67 S.Ct. 828, 91 L.Ed. 1067. . See Belair v. New York, N. H. & H. R. Co., D.C.N.Y., 88 F.Supp. 572; Naughton v. Pennsylvania R. Co., D.C.E.D.Pa., 85 F.Supp. 761." }, { "docid": "20144659", "title": "", "text": "himself who moved to Brooklyn at some unspecified time after the action was commenced, and an unnamed physician who is claimed to have treated him in New York. Under these circumstances much of the trial would have to be by deposition since the witnesses in Puerto Rico are not subject to the compulsory process of this Court. The factors which determine whether a transfer should be made under § 1404(a) include relative ease of access to sources of proof, availability of compulsory process for the attendance of unwilling witnesses, the cost of obtaining willing witnesses, and the other practical considerations which make the trial of a case easy, expeditious and inexpensive. Maloney v. New York, N. H. & H. R. Co., D.C.S.D.N.Y., 88 F.Supp. 568; Dolly Toy Co. v. Bancroft-Rellim Corp., D.C.S.D.N.Y., 97 F.Supp. 531; Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, certiorari denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624; Ferguson v. Ford Motor Co., D.C.S.D.N.Y., 89 F.Supp. 45; Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. Applying these criteria to the instant case, it appears that respondent has met the required burden of showing that the strong balance of convenience requires the transfer of this action to Puerto Rico. Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789; Gulf Oil Corp. v. Gilbert, supra. However, libelant urges that he has the choice of forum and, since he is presently a resident of New York City, the scale should therefore be tipped against transfer. I do not agree. I am mindful that libelant’s privilege to choose his forum is a substantial factor in his favor and should not lightly be disturbed. Ford Motor Co. v. Ryan, supra; Cullinan v. New York Central R Co., D.C.S.D.N.Y., 83 F.Supp. 870. Nevertheless it is by no means the only factor to be considered. The Court must weigh the convenience of the parties, the witnesses and the court in the light of established criteria. Libelant’s choice of forum, and his personal convenience, are merely factors to be taken into" }, { "docid": "1904649", "title": "", "text": "its legislative power which, of course, is anywhere in the United States or its territories. (Citations omitted).” Since defendants do not question the adequacy of service of process, I conclude that this court has personal jurisdiction over them in this action. 2. Transfer Pursuant to 28 U.S.C. § 1404(a) Alternatively, defendants seek transfer of this action to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1404(a). The section provides that: (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. In ruling on a § 1404 transfer motion, however, substantial weight must be attached to plaintiff’s choice of forum. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir. 1950), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950). This consideration is particularly strong in an action brought under the Securities Exchange Act since the venue provision of the Act is designed to serve the underlying federal policy of allowing the plaintiff the widest possible choice of forums. Lemberger v. Westinghouse Electric Corporation, Fed.Sec.L.Rep. (CCH) ¶ 95,762 at 90,742. Defendants point to several factors arguing in favor of transfer. First, defendants maintain that this action should be transferred to New York for the convenience of the parties. Plaintiff’s headquarters and administrative offices are located in this district. Defendant Fuqua, on the other hand, is a Georgia resident, and defendant FIC has its offices in Georgia. In light of the slight time differential involved in air travel from Atlanta to Boston as opposed to New York, this argument is in no way persuasive. The location of plaintiff's and defendants’ general counsel in New York is a factor to be accorded little if any weight. See Xerox Corporation v. Litton Industries, Inc., 353 F.Supp. 412, 415-16 (S.D.N.Y.1973). Further, defendants' have not demonstrated that it would be unduly burdensome to photocopy" }, { "docid": "3233419", "title": "", "text": "dismissed as to defendant French Railways on that ground. Even then dismissal is asked only because French Line will thereby be deprived of the benefit of the presence of French Railways’ witnesses. Indeed defendant French Line has joined with plaintiff in arguing that the case should not be dismissed as to French Railways on the ground of burden on commerce with foreign nations. The motions to dismiss are denied. . Section 225 of the General Corporation Law provides in part; “An action against a foreign corporation may be maintained by another foreign corporation, or by a non-resident, in one of the following cases only: s * * * * “4. Where a foreign corporation is doing business within this state.” . Gilbert v. Gulf Oil Corporation, 2 Cir, 153 F.2d 883, 170 A.L.R. 319, reversed on other grounds 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055; Koster v. Lumbermens Mut. Casualty Co., 2 Cir., 153 F.2d 888, affirmed on other grounds 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067; Willis v. Weil Pump Co., 2 Cir., 222 F.2d 261; Ultra Sucro Co. v. Illinois Water Treatment Co., D.C.S.D.N.Y., 146 E.Supp. 393; but see First Nat. Bank of Chicago v. United Air Lines, 7 Cir., 190 F.2d 493, reversed on other grounds 342 U.S. 396, 72 S.Ct. 421, 96 L.Ed. 441. . Article I, Section 8 provides in part, “The Congress shall have Power * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; * * . See accord Zuber v. Pennsylvania R. Co., D.C.N.D.Ga., 82 F.Supp. 670, 675; but see Southern Ry. Co. v. Cochran, 6 Cir., 56 F.2d 1019; Brown v. Canadian Pac. Ry. Co., D.C.W.D.N.Y., 25 F.Supp. 566; Ferguson v. Ford Motor Co., D.C.S.D. N.Y., 77 F.Supp. 425, 434, motion to transfer action for convenience of parties denied, D.C.S.D.N.Y., 89 F.Supp. 45, affirmed Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, certiorari denied 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624; Wadell v. Green Textile Associates, D.C.D.Mass., 92 F.Supp. 738; Cooke v. Kilgore Mfg." }, { "docid": "13944822", "title": "", "text": "by the real parties in interest rather than by the respondent court, just as it was here.” (Footnotes omitted) Most recently this practice has been approved in a compelling dictum in Varo v. Comprehensive Designers, Inc., 504 F.2d 1103, 1103-04 (9th Cir. 1974), in which we said: “However, we do not pause to attempt to prove our views because we think that the situation is such on the record here that were we to hold that the order denying the stay was unappealable, we should take the extraordinary step of converting the appeal into mandamus or prohibition, ordinarily something to be done stingily. Shapiro v. Bonanza Hotel Co., 185 F.2d 777, 779 (9th Cir. 1950).” Writs of mandamus are accordingly granted, and the Honorable Peirson Hall is directed and ordered to forthwith cause the Clerk of his Court to withdraw the funds deposited as described in this Opinion, together with the interest accrued thereon, and return the proceeds without undue delay to the respective appellants. Judge Hall has also been assigned to the other districts in which actions are pending by the Chief Judge of the United States Court of Appeals for the Ninth Circuit. . What were the common questions of law and fact are not specified. In the state action the complaint alleged that it was the negligence of Alaska Airlines that caused the fatal crash. In the Federal tort action it was alleged that it was the Government’s negligence that caused the accident. . We had always supposed it to be hornbook law that plaintiffs choice of forum should rarely be disturbed. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062 (1947); Ford Motor Co. v. Ryan, 182 F.2d 329 (2d Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950); 1 Moore, Federal Practice, ¶ 0.145[5], p. 1616 (2d ed. 1975), and cases cited in footnotes 5 and 10. As long ago as 1892 the Court complained: ‘Probably no question of equity practice has been the subject of more frequent discussion in this court than" }, { "docid": "22284537", "title": "", "text": "forum now exists, there was none when the action was commenced, since defendant’s present offer to submit to jurisdiction cannot retroactively constitute Geneva a convenient forum as of the time of suit; and (3) defendant has not shown that the Southern District of New York is so inappropriate a forum as to justify dismissal-on forum non conveniens grounds. Defendant-appellee takes issue with each of these contentions, and to them we now turn. In discussing plaintiff’s first argument, that defendant failed to demonstrate the existence of an alternative forum, a prerequisite for application of forum non conveniens, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), we assume that defendant has the burden on this issue. It is clear that defendant has the overall burden of proving that the case should be dismissed when forum non conveniens is applicable, see Gulf Oil, supra, 330 U.S. at 508, 67 S.Ct. at 843 (“[U]nless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”); see also Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950), and defendant did sufficiently show that an alternative forum now exists. The district court had before it expert views of Swiss jurisdictional law. While neither expert said that plaintiff could originally have forced defendant to defend the three tort claims in Geneva, defendant’s expert did explain that a party could consent to jurisdiction “of a court in the canton of Geneva” and, if he did, “the same court shall not be entitled to refuse the case.” The district judge apparently accepted this view as the basis for his conditional order of dismissal. The question whether defendant met his burden of proving the availability of an alternative forum to permit application of the forum non conveniens doctrine thus ultimately turns on resolution of the second, and most important, issue now before us, whether the current existence of an alternative forum suffices to give a district court the power to dismiss" }, { "docid": "15773043", "title": "", "text": "is granted. So ordered. é^xcerptó j?r rom PROCEEDINGS of the JUDICIAL CONFERENCE of the SIXTH JUDICIAL CIRCUIT of the UNITED STATES May 21, 1970 Held at GATLINBURG, TENNESSEE * 50 F.R.D. 319 Faculty Member: v Deliver to: GMW Due Date: '■A | j u, | c\\ ONLINE CIRCULATION CHARGE Faculty Document Delivery 6-2147 ¥ . Common excuses are failure to obtain in personam jurisdiction and destruction of diversity if joinder is compelled. . C. Wright, Federal Courts § 70, at 259, 261 (1963) ; F. James, Civil Procedure § 9.14, at 413 (1965). . Rule 19(b), Fed.R.Civ.P. . See 3A J. Moore, Federal Practice If 19.01-1 [4], at 2120 (2d ed. 1969). . See North Carolina General Statutes §§ 59-43, 59-45; Johnson v. Gill, 235 N.C. 40, 44, 68 S.E.2d 788 (1952); Daniel v. Bethell, 167 N.C. 218, 83 S.E. 307 (1914) ; Hanstein v. Johnson, 112 N.C. 253, 254, 258, 17 S.E. 155, 156 (1893). . See N. Y. Partnership Law §§ 24, 25 and 26. . See Weaver v. Marcus, 165 F.2d 862 (4th Cir. 1948) ; 3A J. Moore, Federal Practice H 19.11, at 2363-2364 (2d ed. 1969). . See N.Y. CPLR § 1501. . See J. McLaughlin, Supplementary Practice Commentary to CPLR. § 1501 (McKinney’s Supp. 1970). . See Great Southern Fireproof Hotel Co. v. Jones, 177 U.S. 449, 20 S.Ct. 690, 44 L.Ed. 842 (1900) ; A.D.S. Developers, Inc. v. Tucker, 263 F.Supp. 986 (E.D. Pa.1967). . See Weaver v. Marcus, supra, 165 F.2d at 865-866. See also Kerr v. Compagnie De Ultramar, 250 F.2d 860, 863-864 (2d Cir. 1958). . See County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959) ; Meredith v. City of Winter Haven, 320 U.S. 228, 234, 64 S.Ct. 7, 88 L.Ed. 9 (1943). . See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ; Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir.), cert, denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950) ; Schmidt v. American Flyers Airline" }, { "docid": "13944823", "title": "", "text": "in which actions are pending by the Chief Judge of the United States Court of Appeals for the Ninth Circuit. . What were the common questions of law and fact are not specified. In the state action the complaint alleged that it was the negligence of Alaska Airlines that caused the fatal crash. In the Federal tort action it was alleged that it was the Government’s negligence that caused the accident. . We had always supposed it to be hornbook law that plaintiffs choice of forum should rarely be disturbed. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062 (1947); Ford Motor Co. v. Ryan, 182 F.2d 329 (2d Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950); 1 Moore, Federal Practice, ¶ 0.145[5], p. 1616 (2d ed. 1975), and cases cited in footnotes 5 and 10. As long ago as 1892 the Court complained: ‘Probably no question of equity practice has been the subject of more frequent discussion in this court than the finality of decrees. . . . The cases, it must be conceded, are not altogether harmonious.’ McGourkey v. Toledo & Ohio R. Co., 146 U.S. 536, 544-545 [13 S.Ct. 170, 172, 36 L.Ed. 1079], In the intervening years the difficulty of resolving such questions has not abated. As Mr. Justice Black commented in Gillespie v. U. S. Steel Corp., 379 U.S. 148, 152 [85 S.Ct. 308, 311, 13 L.Ed.2d 199] (1964), ‘whether a ruling is “final” within the meaning of § 1291 is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and . it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the “twilight zone” of finality.’ ” WALLACE, Circuit Judge (concurring): I concur in the majority opinion except the discussion of the jurisdiction of this court to consider the issues raised by appellants. As to that, I concur in the result only. I would not leave unanswered the question whether an appeal" }, { "docid": "14704164", "title": "", "text": "of a community having no relation to the litigation; the unnecessary injection of problems in conflict of laws; and all other practical problems which make the trial of a case easy, expeditious, and inexpensive. In Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 67 S.Ct. 839, 843, 91 L.Ed. 1055, the Supreme Court, after setting forth the criteria which should govern in applying the doctrine of forum non conveniens, said that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” This rule has been followed in many cases subsequent to the enactment of section 1404 (a). In Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329, certiorari denied 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624, the court interpreted the foregoing language in Gulf Oil Corp. v. Gilbert “to mean (a) that a defendant has the burden of making out a strong case for a transfer and (b) that the plaintiff’s privilege, conferred by statute, of choosing the forum he selected is a factor to be considered as against the ‘convenience’ of the witnesses or what otherwise might be the balance of ‘convenience’ as between ‘the parties.’” 182 F.2d at page 330. It was held, however, in Josephson v. McGuire, D.C.D.Mass.1954, 121 F.Supp. 83, 84, that while “a large meas ure of deference is due to the plaintiff’s freedom to select his own forum”, this “factor has minimal value where none of the conduct complained of occurred in the forum selected by the plaintiff * * Thig is particularly true where the plaintiff is not a resident of the judicial district where he has instituted suit. On the other hand, it has been held that the residence of the plaintiff, while not the only consideration, is a fact of “high significance”. Markantonatos v. Maryland Drydock Co., D.C.S.D.N.Y. 1953, 110 F.Supp. 862, 864. Plaintiffs here are bona fide residents of the judicial district, living at Laurel, Montana, 15 miles from Billings. The cases do not accordingly involve the question of “shopping around” for a jurisdiction where higher" }, { "docid": "5903299", "title": "", "text": "315 U.S. 813, 62 S.Ct. 798, 86 L.Ed. 1211, rehearing denied, 315 U.S. 831, 62 S.Ct. 913, 86 L.Ed. 1224 (1942) (seventeen days). . Cressman v. United Air Lines, Inc., 158 F.Supp. 404 (S.D.N.Y.1958); Boggess v. Columbian Rope Company, 167 F.Supp. 854 (S.D.N.Y.1958); Keller-Dorian Colorfilm Corp. v. Eastman Kodak Co., 88 F. Supp. 863 (S.D.N.Y.1949). Cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); United States v. General Motors Corporation, 183 F.Supp. 858 (S.D.N.Y.1960); Welch v. Esso Shipping Co., 112 F.Supp. 611 (S. D.N.Y.1953); Moore, Federal Practice (2d Ed.) ¶ 0.145[5]. . See Securities And Exchange Commission v. Glass Marine Industries, Inc., 208 F. Supp. 727, 729 (D.C.Del.1962). “The facts elicited during depositions on discovery are brought out by two-edged questions propounded by a hostile attorney, while the witness has little defense against innuendo and misconstruction of his answers. True, the defendant’s at torney can also question the witness, but he is better advised if he reserves his questions until the trial, but even then he is in constant danger of contradiction. The facts which have been elicited on deposition for discovery reach the court colored by the attitude of the examining attorney, and without the judge’s ever having seen the witness. The whole result is a lopsided presentation of the facts - — -part being presented by the straightforward testimony of witnesses under the observation and control of the judge, and the rest from behind the veil of typescript.” Dike, “A Step Backward in the Federal Courts: Are We Returning to Trial by Deposition?”, 37 A.B.A.J. 17, 18 (1951). . Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). . Ford Motor Co. v. Ryan, 182 F.2d 329 (2 Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950). . H. L. Green Co., Inc. v. MacMahon (2 Cir., 1962), 312 F.2d 650; Clayton v. Warlick, 232 F.2d 699, 706 (4 Cir. 1956); Torres v. Walsh, 221 F.2d 319 (2 Cir.), cert. denied, 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 746 (1955); Boggess" }, { "docid": "23441793", "title": "", "text": "350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735 (1955). . Cf. United States v. United States Steel Corp., 233 F.Supp. 154, 157 (S.D.N.Y.1964). . Peyser v. General Motors Corp., 158 F.Supp. 526, 529 (S.D.N.Y.1958); Robbins Music Corp. v. Alamo Music, Inc., 119 F.Supp. 29 (S.D.N.Y.1954). . Cf. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 628, 64 S.Ct. 724, 88 L.Ed. 967 (1944); Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir. 1952); Ford Motor Co. v. Ryan, 182 F.2d 329, 331 (2d Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950); Colby v. Klune, 178 F.2d 872, 874 (2d Cir. 1949); Lago Oil & Transp. Co. v. United States, 97 F.Supp. 438, 439 (S.D.N.Y. 1951). See also, NLRB v. Majestic Weaving Co., 355 F.2d 854 (2d Cir. 1966), where Judge Friendly put it this way: “ [Observation of the witnesses is likely to give a more accurate feel than reading a cold record; something would depend on what manner of man [the witness] was, and whether [his] testimony * * * carried true conviction.” . Cf. Jenkins v. Wilson Freight Forwarding Co., 104 F.Supp. 422, 424 (S.D.N.Y.1952). . Cf. United States v. United States Steel Corp., 233 F.Supp. 154, 158-159 (S.D.N.Y.1964). See also, Ford Motor Co. v. Ryan, 182 F.2d 329, 330-331 (2d Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950). . See Lykes Bros. S.S. Co. v. Sugarman, 272 F.2d 679, 681 (2d Cir. 1959). But see Sypert v. Miner, 266 F.2d 196, 199 (7th Cir.), cert. denied, 361 U.S. 832, 80 S.Ct. 82, 4 L.Ed.2d 74 (1959). . Cf. United States v. United States Steel Corp., 233 F.Supp. 154, 160 (S.D.N.Y.1964). . Cf. Van Dusen v. Barrack, 376 U.S. 612, 645-646, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). . Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959); Marquardt-Glenn Corp. v. Lumelite Corp., 11 F.R.D. 175, 177 (S.D.N.Y.1951). Cf. Hickman v. Taylor, 329 U.S. 495, 500-501, 67 S.Ct. 385, 91 L.Ed. 451 (1947)." }, { "docid": "23441792", "title": "", "text": ". See Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 81 L.Ed. 153 (1936). Cf. Mandeville v. Canterbury, 318 U.S. 47, 63 S.Ct. 472, 87 L.Ed. 605 (1943). . 28 U.S.C. § 1404 provides: “Change of venue, (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” . 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). . Id. at 508, 67 S.Ct. 839. . Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789 (1955). . Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). . Cf. Van Dusen v. Barrack, 376 U.S. 612, 643, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). . Cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Chicago, R. I. & P. R.R. v. Igoe, 220 F.2d 299, 303 (7th Cir.), cert. denied, 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735 (1955). . Cf. United States v. United States Steel Corp., 233 F.Supp. 154, 157 (S.D.N.Y.1964). . Peyser v. General Motors Corp., 158 F.Supp. 526, 529 (S.D.N.Y.1958); Robbins Music Corp. v. Alamo Music, Inc., 119 F.Supp. 29 (S.D.N.Y.1954). . Cf. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 628, 64 S.Ct. 724, 88 L.Ed. 967 (1944); Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir. 1952); Ford Motor Co. v. Ryan, 182 F.2d 329, 331 (2d Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950); Colby v. Klune, 178 F.2d 872, 874 (2d Cir. 1949); Lago Oil & Transp. Co. v. United States, 97 F.Supp. 438, 439 (S.D.N.Y. 1951). See also, NLRB v. Majestic Weaving Co., 355 F.2d 854 (2d Cir. 1966), where Judge Friendly put it this way: “ [Observation of the witnesses is likely to give a more accurate feel than reading a cold record; something would depend on what manner of man [the witness] was, and whether [his] testimony" }, { "docid": "14704163", "title": "", "text": "is not to be considered, but only that the discretion to be exercised is broader.” 349 U.S. at page 32, 75 S.Ct. at page 54 . Although the district judge has a broader discretion in acting on motions to transfer, “in exercising this discretion he is limited in his consideration to the three factors specifically mentioned in § 1404(a), and he may not properly be governed in his decisions by any other factor or consideration”, except that due consideration must be given to plaintiff’s choice of forum. Nor may he consider one factor to the exclusion of the other two. The test “in the interests of justice” includes, in addition to the convenience of the parties and witnesses, such criteria as the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; the possibility of a view of the premises, if appropriate ; the state of the court calendar in both districts; the burden of jury duty on people of a community having no relation to the litigation; the unnecessary injection of problems in conflict of laws; and all other practical problems which make the trial of a case easy, expeditious, and inexpensive. In Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 67 S.Ct. 839, 843, 91 L.Ed. 1055, the Supreme Court, after setting forth the criteria which should govern in applying the doctrine of forum non conveniens, said that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.” This rule has been followed in many cases subsequent to the enactment of section 1404 (a). In Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329, certiorari denied 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624, the court interpreted the foregoing language in Gulf Oil Corp. v. Gilbert “to mean (a) that a defendant has the burden of making out a strong case for a transfer and (b) that the plaintiff’s privilege, conferred by statute, of choosing the forum he selected" }, { "docid": "14704172", "title": "", "text": "is so completely inappropriate and inconvenient that it is better to stop the litigation in the place where brought and let it start all over again somewhere else. It is quite naturally subject to careful limitation for it not only denies the plaintiff the generally accorded privilege of bringing an action where he chooses, but makes it possible for him to lose out completely, through the running of the statute of limitations in the forum finally deemed appropriate. Section 1404(a) avoids this latter danger. Its words should be considered for what they say, not with preconceived limitations derived from the forum non con-veniens doctrine.’ ” 349 U.S. at page 31, 75 S.Ct. at page 546. . Chicago, Rock Island & Pacific Railroad Co. v. Igoe, 7 Cir., 1955, 220 F.2d 299, 302, certiorari denied 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735. . See Brown v. Woodring, D.C.M.D.Pa. 1959, 174 F.Supp. 640, 645, and cases there cited. . See Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055; Chicago, Rock Island & Pacific Railroad Co. v. Igoe, supra; Brown v. Woodring, supra. . See Norwood v. Kirkpatrick, supra; Sociedade Brasilerira, etc. v. S. S. Punta Del Este, D.C.D.N.J.1955, 135 F.Supp. 394; Miracle Stretch Underwear Corp. v. Alba Hosiery Mills, D.C.D.Del.1955, 136 F.Supp. 508; Lesser v. Chevalier, D.C.S.D.N.Y.1956, 138 F.Supp. 330; and Ford Motor Co. v. Ryan, infra. . See also In re Josephson, 1 Cir., 1954, 218 F.2d 174; Chicago, Rock Island & Pacific Railroad Co. v. Igoe, supra, and Morgan v. Illinois Central Railroad Co., D.C.S.D.Tex.1958, 161 F.Supp. 119. . See Southern Railway Company v. Madden, 4 Cir., 1956, 235 F.2d 198, 201, where it was held that the trial judge had abused his discretion in denying transfer of a case where it appeared that the accident occurred in Charlotte, North Carolina; that all of the witnesses to the occurrence and to the treatment of plaintiff in a Charlotte hospital following his injury lived in Charlotte, except one who had moved to another state; that a view of the “locus in" }, { "docid": "15773044", "title": "", "text": "(4th Cir. 1948) ; 3A J. Moore, Federal Practice H 19.11, at 2363-2364 (2d ed. 1969). . See N.Y. CPLR § 1501. . See J. McLaughlin, Supplementary Practice Commentary to CPLR. § 1501 (McKinney’s Supp. 1970). . See Great Southern Fireproof Hotel Co. v. Jones, 177 U.S. 449, 20 S.Ct. 690, 44 L.Ed. 842 (1900) ; A.D.S. Developers, Inc. v. Tucker, 263 F.Supp. 986 (E.D. Pa.1967). . See Weaver v. Marcus, supra, 165 F.2d at 865-866. See also Kerr v. Compagnie De Ultramar, 250 F.2d 860, 863-864 (2d Cir. 1958). . See County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959) ; Meredith v. City of Winter Haven, 320 U.S. 228, 234, 64 S.Ct. 7, 88 L.Ed. 9 (1943). . See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) ; Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir.), cert, denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950) ; Schmidt v. American Flyers Airline Corp., 260 F.Supp. 813, 815 (S.D.N.Y. 1966). . Saperstone v. Kapelow, 279 F.Supp. 781, 783 (S.D.N.Y.1968) ; Schmidt v. American Flyers Airline Corp., supra, 260 F. Supp. at 814; Jenkins v. Wilson Freight Forwarding Co., 104 F.Supp. 422, 424 (S.D.N.Y.1952). . See Schmidt v. American Flyers Airline Corp., supra, 260 F.Supp. at 814; Markantonatos v. Maryland Drydock Co., 110 F.Supp. 862, 864 (S.D.N.Y.1953)." }, { "docid": "10323982", "title": "", "text": "for mandamus it is ordered that the petition be denied. . Jiffy Lubricator Co. v. Stewart Warner Corp., 4 Cir., 177 F.2d 360; Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 178 F.2d 866; Ford Motor Co. et al. v. Ryan, 2 Cir., 182 F.2d 329. The first two eases cited were appeals from an order transferring venue. The Ford Motor Go. ease involved an order denying transfer. . Ford Motor Co. et al. v. Ryan, 2 Cir., 182 F.2d 329, cited supra Note 1. . Ford Motor Co. et al. v. Ryan; Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., both cited supra Note 1. . 28 U.S.C.A. § 1651(a). . 28 U.S.C.A. § 1332, a civil action involving a controversy in excess of $3,000 and involving citizens of different states. . We are not aware of any “statute of the United States” which has enlarged the area in which effective service may lawfully be made so as to include in such area states other than the state in which the Federal district court issuing the service happens to be sitting. . Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 842, 91 L.Ed. 1055; see also Wilson v. Seas Shipping Co., Inc., D.C., 78 F.Supp. 464, wherein the court refused to transfer an action under the forum non conveniens doctrine made by the defendant where the defendant had not shown that he was amenable to process in that district." }, { "docid": "1904648", "title": "", "text": "(D.Md.1971). Defendants consented to service of process made upon their counsel in this district. Such service was reasonably calculated to give them notice of the pendency of this action. See Hanson v. Denckla, 357 U.S. 235, 245, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). They argue, however, that they lack the requisite minimum contacts with the Commonwealth of Massachusetts to satisfy the due process requirements of International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The International Shoe standard is applicable only where a state court asserts jurisdiction over an out-of-state defendant pursuant to that state’s long-arm statute. Where an action is brought under the Securities Exchange Act of 1934 in a federal court, Section 27 provides for nationwide service of process. Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir. 1974). As noted by the court in Kramer v. Scientific Control Corp., 365 F.Supp. 780, 787 (E.D.Pa.1973), “Congress has the power to provide for the reach of service of process to the outer limits of the reach of its legislative power which, of course, is anywhere in the United States or its territories. (Citations omitted).” Since defendants do not question the adequacy of service of process, I conclude that this court has personal jurisdiction over them in this action. 2. Transfer Pursuant to 28 U.S.C. § 1404(a) Alternatively, defendants seek transfer of this action to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1404(a). The section provides that: (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. In ruling on a § 1404 transfer motion, however, substantial weight must be attached to plaintiff’s choice of forum. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir. 1950), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950). This consideration is particularly" }, { "docid": "23220785", "title": "", "text": "employees there are a number of other witnesses such as shoppers in the store- and employees or officials of the O’Keefe Elevator who installed the escalator upon which the plaintiff claims to have been injured, and also engineers and experts who live in or near Omaha, Nebraska, and that the latter witnesses may not be compelled to attend by any process issued out of the District Court in Michigan. It is clear that whether the order stands or is set aside, one of the litigants will be inconvenienced, and it became the duty of the district judge to balance inconveniences and to determine upon which litigant the greater hardship would rest, if he granted change of venue, and that determination was subject to the rule that unless the balance is strongly in favor of the defendant the plaintiff’s choice of forum should rarely be disturbed. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055. It is said, however, in that case, 330 U.S. at page 509, 67 S.Ct. at page 843, 91 L.Ed. 1055, “Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. * * * There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.” Determination as to the greater convenience or inconvenience must rest within the sound judicial discretion of the district judge to whom the petition for change of venue is addressed, and his decision should not be set aside unless there is apparent an abuse of discretion. This is so whether we accept the view of Judge Frank in Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, 331, that the judge must guess and that we should accept his guess unless it is “too wild,” or whether we take the more conventional approach" } ]

[ { "docid": "9846335", "title": "", "text": "and In re Loretto Winery Ltd., 898 F.2d 715, 718 (9th Cir.1990)). B. Section 518 and the Power of the Trustee Under 11 U.S.C. § 548(a)(1), the trustee “may avoid any transfer of an interest of the debtor in property” made within one year before the debtor files a petition for bankruptcy. Although the bankruptcy code does not define “property of the debtor,” section 541(a)(1) provides that the “property of the estate” includes “all legal or equitable interests of the debt- or in property as of the commencement of the case.” Section 541(d) further provides: Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest ... becomes property of the estate under subsection (a) of this section only to the extent of the debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold. ■ The Supreme Court has interpreted these statutes as including in a debtor’s estate “that property that would have been part of the estate had it not been transferred before the commencement of the bankruptcy proceedings.” Begier v. IRS, 496 U.S. 53, 58, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990). However, “[b]ecause the debtor does not own an equitable interest in property he holds in trust for another, that interest is not ‘property of the estate.’ ” Id. at 59,110 S.Ct. 2258. State law determines whether funds held in escrow constitute an express trust excluded from the debtor’s estate. Barnhill v. Johnson, 503 U.S. 393, 398,112 S.Ct. 1386, 118 L.Ed.2d 39 (1992) (noting that under the bankruptcy code “ ‘property’ and ‘interests in property are creatures of state law”) (citing McKenzie v. Irving Trust Co., 323 U.S. 365, 370, 65 S.Ct. 405, 89 L.Ed. 305 (1945), and Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979)). Under Tennessee law, establishing the existence of an express trust requires proof of three elements: (1) a trustee who holds trust property and who is subject to the equitable duties" } ]

[ { "docid": "15020394", "title": "", "text": "court reasoned that, as Criswell’s transfer of the properties to the Children’s Trust in October 1988 was fraudulent under state law, the debtor must be deemed to have maintained at least an equitable, if not a legal, interest in the property fraudulently transferred to the Children’s Trust, which interest therefore could be the subject of an avoidable preference under § 547(b). We find the district court’s analysis compelling; it properly resolves this first issue and is consistent with the reasoning in decisions of the Supreme Court, this circuit, and other courts in similar cases. We begin, just as the district court did, by noting that § 541 defines the property of a bankruptcy estate first and most generally as including “all legal or equitable interests of the debtor in property as of the commencement of the case,” before it goes on to include “[a]ny interest in property that the trustee recovers under section ... 550 [the recovery provision for § 547 preferences and §§ 544 and 548 fraudulent transfers],” and “[a]ny interest in property that the estate acquires after the commencement of the case.” These § 541 “property of the estate” definitions have been directly linked with the term “interest of the debtor in property” under § 547(b) by a number of courts, including the Supreme Court. First, in Begier v. IRS, a case concerning whether payment by a corporate debtor of withheld payroll, income, and excise taxes (i.e., “trust-fund taxes”) to the IRS was an avoidable preference under § 547, the Supreme Court recognized that the term “property of the debtor” is not defined for purposes of § 547. The Court then observed, however, that, given the purposes of the preference avoiding statute, the term “is best understood as that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings.” Thus, the court concluded: For guidance, then, we must turn to § 541, which delineates the scope of “property of the estate” and serves as the post-petition analog to § 547(b)’s “property of the debt- or.” The Court, in" }, { "docid": "1158160", "title": "", "text": "MEMORANDUM OPINION JUDITH K. FITZGERALD, Bankruptcy Judge. The matter before the court is the trustee’s complaint for turnover against Debtor. The parties have submitted the matter on the pleadings and briefs. There are no material facts in dispute. The trustee seeks to recover Debtor’s interest in an Individual Retirement Account (IRA). Debtor contends that under the United States Supreme Court’s decision in Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992), and pursuant to 11 U.S.C. § 541(c)(2), the IRA is excluded from property of his bankruptcy estate. We find that the IRA is estate property and that Debtor must turn it over to the trustee. The parties agree to the following facts: Debtor was employed by Colebrook Farms, Inc., for 15 years before April, 1990. During his employment, he was covered by an ERISA qualified non-contributory defined benefit pension plan. Debtor’s employer filed a chapter 11 petition in 1989 and Debt- or’s employment ended that same year. The pension plan was terminated on April 15, 1990. The termination of the plan was approved by the Internal Revenue Service in September of 1990 and employees were provided with information on alternate investments and rollovers of their interests in the plan. In October of 1990 Debtor received a lump sum distribution of $9,721 from the pension fund. Several days later, Debtor deposited the entire amount in an IRA. Since then, he has held other jobs. Through his present employer Debtor is covered by a non-contributory pension plan that does not accept rollover contributions. Debtor filed this bankruptcy on October 20, 1992, two years after the pension distribution. Debtor argues that because the IRA was created by a rollover from an ERISA qualified plan to which § 541(c)(2) would apply, the IRA also is protected. Section 541(c)(2) of the Bankruptcy Code provides that A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankrupt-cy law is enforceable in a case under this title. 11 U.S.C. § 541(c)(2). In Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119" }, { "docid": "4568962", "title": "", "text": "the present case, is whether the statutes do, in fact, plainly say what they mean. This appears to be a matter of first impression, and the Court finds that the language of the statute could be parsed to favor either party. The debtor wishes the Court to focus simply on the idea that “an interest” (or any interest) in a college savings fund may be claimed as exempt, and that as the “account owner” Mr. Bronk surely must be regarded as having an “interest” in the account. The trustee wishes the Court to view the exemption as only covering those interests in an account “under” Wis. Stat. § 14.64 (i.e., only those interests recognized as exempt under that statute). He argues that § 14.64(7)(a) (which clearly exempts only “a beneficiary’s right” to withdrawals) would be superfluous if the debtor’s interpretation of the statute was correct. In order to reach a conclusion, it is helpful to consider the history of college savings accounts — or “529 plans,” as they are often called. In order to encourage families to save money to pay for college, Congress added provisions to the Internal Revenue Code which enabled states to create what are called “Qualified Tuition Programs.” See 26 U.S.C. § 529. These programs come in two flavors: the prepaid tuition plan and the education savings plan. The prepaid option allows someone to purchase tuition credits on behalf of a beneficiary and essentially “lock in” tuition at the current rate. The savings account option, on the other hand, allows contributors to make contributions to an account established for a “designated beneficiary.” The deposited money may then be placed in a variety of investment options or portfolios, and all earnings are exempt from income tax while invested in the account. The earnings avoid tax entirely as long as they are withdrawn to pay “qualified higher education expenses” to an “eligible educational institution.” In the tax context, contributions to a Section 529 savings plan are “treated as a completed gift to such beneficiary” and not as a future interest in property, which means that funding such a" }, { "docid": "4568973", "title": "", "text": "to an account in accordance with section 529(b)(1)(A) of the Internal Revenue Code of 1986 under a qualified State tuition program (as defined in section 529(b)(1) of such Code) not later than 365 days before the date of the filing of the petition in a case under this title, but— (A) only if the designated beneficiary of the amounts paid or contributed to such tuition program was a child, stepchild, grandchild, or stepgrandchild of the debtor for the taxable year for which funds were paid or contributed; (B) with respect to the aggregate amount paid or contributed to such program having the same designated bene fíciary, only so much of such amount as does not exceed the total contributions permitted under section 529(b)(7) of such Code with respect to such beneficiary ...; and (C) in the case of funds paid or contributed to such program having the same designated beneficiary not earlier than 720 days nor later than 365 days before such date, only so much of such funds as does not exceed $5,475[.] As the court noted in Bourguignon, the statute provides an exclusion from property of the estate for 529 accounts on a “sliding scale.” 416 B.R. at 752. Relevant to this case is what is essentially the bottom end of the scale: any contributions made within the year prior to bankruptcy are not excluded from property of the estate. Id. at 752-73. This brings the discussion back to the Wisconsin exemption. Did the Wisconsin legislature intend to permit a broad, unlimited exemption of college savings funds which could be claimed by the account owner as well as the beneficiary? Or did the legislature specifically intend to restrict this exemption to the beneficiary of such accounts, thus limiting the possibility of abuse by account owners? While 529 accounts are creatures of federal law, the enabling legislation — and the corresponding exemption from the claims of creditors, if such an exemption exists — is a function of state law. Notably, even though all 50 states have passed legislation authorizing college savings accounts, there is no uniformity regarding exemption of" }, { "docid": "10864690", "title": "", "text": "Debtor’s sixty-nine transactions with Columbia, only approximately five payments were made before the due date. Columbia sent termination notices to the Debtor on several occasions but never terminated the Debtor’s service until the Debtor filed for bankruptcy. The Debtor took an average of thirty to thirty-two days to make payments on each of the three accounts over the life of the accounts. Except for one period of account realignment, the Debtor always paid within the billing cycle. However, the Debtor frequently waited until it received a termination notice before paying its utility bill. According to Columbia, this is fairly typical of a substantial number of commercial customers. II Unless one of the exceptions from section 547(e) applies, section 547(b) of the Bankruptcy Code provides that the trustee may avoid certain transfers made in the ninety days preceding the petition for bankruptcy as “preferences” if five conditions are satisfied. 11 U.S.C. § 547. To qualify as a voidable preference, a transfer must “(1) benefit a creditor; (2) be on account of antecedent debt; (3) be made while the debtor was insolvent; (4) be made within 90 days before bankruptcy; and (5) enable the creditor to receive a larger share of the estate than if the transfer had not been made.” Union Bank v. Wolas, 502 U.S. 151, 155, 112 S.Ct. 527, 529-30, 116 L.Ed.2d 514 (1991). It is undisputed that all of the elements required to establish a voidable preference under section 547(b) have been established in this case. See Luper v. Columbia Gas of Ohio, Inc., 170 B.R. 355, 357 (Bankr.S.D.Ohio 1994). However, under section 547(e)(2) of the Bankruptcy Code, the trustee may not avoid any transfer to the extent that such transfer was: (A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee; (B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (C) made according to ordinary business terms. 11 U.S.C. § 547(e)(2) (emphasis added). Subsections (B) and (C) of section 547(c)(2) “comprise a subjective" }, { "docid": "4568972", "title": "", "text": "case.” The scope of this provision is broad and all encompassing. See Chappel v. Proctor (In re Chappel), 189 B.R. 489 (9th Cir. BAP 1995). The intent of the statute is to include all property rights of the debtor. Movitz v. Palmer (In re Palmer), 167 B.R. 579 (Bankr.D.Ariz.1994). The absolute control Mr. Bronk has over these accounts — i.e., his continued “ownership” of the funds — constitutes a “legal or equitable interest” in property. See Addison, 540 F.3d at 819-20; Bourguignon, 416 B.R. at 751; Rice v. Johnson (In re Johnson), 371 B.R. 380 (Bankr.E.D.Ark.2007) (prepaid school tuition that was fully refundable constituted property of the estate). Property of the estate is subject to the control of the bankruptcy trustee unless it is excluded from the estate under § 541 or exempt under relevant law. In this regard, § 541(b)(6) was added by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. It provides that property of the estate does not include: [Fjunds used to purchase a tuition credit or certifícate or contributed to an account in accordance with section 529(b)(1)(A) of the Internal Revenue Code of 1986 under a qualified State tuition program (as defined in section 529(b)(1) of such Code) not later than 365 days before the date of the filing of the petition in a case under this title, but— (A) only if the designated beneficiary of the amounts paid or contributed to such tuition program was a child, stepchild, grandchild, or stepgrandchild of the debtor for the taxable year for which funds were paid or contributed; (B) with respect to the aggregate amount paid or contributed to such program having the same designated bene fíciary, only so much of such amount as does not exceed the total contributions permitted under section 529(b)(7) of such Code with respect to such beneficiary ...; and (C) in the case of funds paid or contributed to such program having the same designated beneficiary not earlier than 720 days nor later than 365 days before such date, only so much of such funds as does not exceed $5,475[.] As" }, { "docid": "13811736", "title": "", "text": "the tax refund held by the First and Second Lien Lenders. To avoid the liens pursuant to section 547, Plaintiff must prove the “transfer of an interest of the debtor in property (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made ... on or within 90 days before the petition; ... (5) that enables such creditor to receive more than such creditor would receive if (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title.” 11 U.S.C. § 547(b). For purpose of section 547, “the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition.” 11 U.S.C. § 547(f). As part of the July 31 Transaction, the Debtors granted liens on “general intangibles” to the First and Second Lien Lenders. Similar liens were granted to the Revolver Lenders to secure loans under the Second Amended Revolver Agreement executed on the same date. The Debtors’ general intangibles were previously unencumbered. For purposes of section 547, “a transfer is not made until the debtor has acquired rights in the property transferred.” 11 U.S.C. § 547(e)(3). The date on which the Debtors “acquired rights in” the federal income tax refund was January 1, 2008, immediately following completion of the 2007 tax year. Prior to that date, the Debtors had no right under federal income tax law to claim the refund. Order Denying Creditor’s Motion for Summary Judgment to Dismiss Count XIX of the Third Amended Complaint and Granting Plaintiffs Cross-Motion for Partial Sum mary Judgment at 17 [Adv. Pro. DE 379], 406 B.R. 421, 432. Because the debtors first acquired rights in the refund on January 1, 2008, that is the date of the transfer of the liens on that refund. Thus, the transfer occurred" }, { "docid": "4568994", "title": "", "text": "delay this creditor's pursuit of his assets while he attempted to protect them from seizure by utilizing the exemptions available to him under Wisconsin law. . To the extent the amount or value of the assets converted into exempt property is relevant, the Court finds it relatively modest and in keeping with the debtor's legitimate desire to preserve his assets within the boundaries of the Wisconsin exemption laws. It does not indicate that he sought to defraud his creditors. . Further, while these transfers may have transformed virtually all of Mr. Bronk's nonexempt assets into exempt ones, he hardly resembles the affluent debtors of Tveten or Reed, nor does he have a sizeable income in addition to these assets. According to his statement of financial affairs, his 2007 income of $81,589.00 included social security of $26,022.00 and pension distributions of $55,567.00; his 2008 income of $27,699.00 included social security of $22,905 and pension distributions of $4,794.00. Through the date of filing in August of 2009, his 2009 income totaled $13,846.00 (social security of $10,626.00 and pension distributions of $3,220.00). . For purposes of this decision, further references to \"529 plans” will, unless otherwise noted, mean savings accounts rather than prepaid tuition accounts. . Earnings withdrawn for other purposes are subject to income tax and a 10% penalty. . See Adam Winger, “Pick on Someone Your Own Size: Exposing the Account Owner's Silent Assault on Section 529 Savings Accounts,” 35 ACTEC J. 277, 278 (Winter 2009) (\"It is inconsistent with general tax transfer concepts that a contributor enjoy the tax benefits of a completed gift while retaining sole control over the account assets. Furthermore, the [account owner's] unbridled ability to both rename the beneficiary and withdraw funds frustrates Section 529's intent, placing the [beneficiary’s] education at risk.”). . See http://a584.g.akamai.nefifi584/1326/ld/ www.wellsfargoadvantagefunds.com/pdf/529/ edvesfiprogram_description.pdf (last accessed December 28, 2010). The Wisconsin College Savings Program also offers another plan, the \"tomorrow’s scholar” college savings plan. The participation agreement for that plan contains similar language regarding account ownership. See tomorrow’s scholar college savings plan Program Description and Participation Agreement (dated July 16, 2010) at 7," }, { "docid": "17941768", "title": "", "text": "letter dated February 8, 1989 claiming that Debtors personally owed $363,822 in back taxes and $307,709 in interest and penalties. This letter also informed Debtors that they could either immediately consent to the deficiency collection or file a written protest with the Internal Revenue Service. On March 6, 1989, Debtors filed a formal protest. Three days later, they filed a Chapter 13 bankruptcy petition. In this petition, Debtors listed the United States as a creditor that possessed a disputed, contingent, and unliquidated claim for zero dollars. The IRS received notice of this filing. Approximately two weeks later, Debtors filed their Chapter 13 plan and statement. The plan provided for payment of any claims submitted pursuant to section 507(a)(7). Section 507(a)(7) provides the IRS with a priority for any “allowed unsecured claim” arising from a tax on income or gross receipts. 11 U.S.C.A. § 507(a)(7)(A) (West Supp.1990). Additionally, Debtors filed a statement that mirrored Official Form 10. 11 U.S.C.A. Official Forms, No. 10 (West 1989). Paragraph 12(a) of Form 10 requests a listing of “Debts Having Priority.” Under this heading, Debtors listed the IRS as a creditor with an unliquidated and disputed claim of zero dollars. Additionally, paragraph 12(c) requests a listing of “Unsecured Debts.” Paragraph 12(c) had two sub-headings: (1) “Amount Claimed by Creditor,” and (2) “If Disputed, Amount Admitted by Creditor.” Debtors wrote “0.00” as the “Amount Claimed by Creditor” and left the latter sub-heading blank for their IRS debt. On April 4, 1989, the IRS sent Debtors deficiency notices for the tax years in question. On May 17, 1989, at a confirmation hearing for the plan, Debtors stated that they would revise their plan if the IRS filed a claim with the Bankruptcy Court. The deadline for filing claims was July 24,1989. The Bankruptcy Court confirmed the plan on May 17, 1989. At no time did the IRS object to the confirmation. Moreover, while the IRS did inform Debtors in a letter on June 27, 1989 that it “[w]as attempting to file a proof of claim so that the [IRS could] share in the distribution of any assets,”" }, { "docid": "1146303", "title": "", "text": "under the chapter 13 plan, in hopes of recovering against the debtor after the closing of the case.”). C.Corporate Liabilities The IRS maintains that the Corporate Liabilities are unaffected by the debtors’ chapter 13 filing because the liabilities are owed by a separate legal entity, a professional corporation. This position is correct in respect to the debts owed by the professional corporation. But the issue is the debtors’ liability for the professional corporation’s tax debts. Since the ÍRS neglected to file a claim for the debtors’ liability for the Corporate Liabilities, those debts, with respect to the debtors, are not valid under this chapter 13 case. 11 U.S.C. § 502 and Bankruptcy Rule 3002(a). II. STATUS OF FUNDS OBTAINED BY THE INTERNAL REVENUE SERVICE In light of the above determinations, the next issue is the status of the property obtained by the IRS in an effort to satisfy several of the debtors’ tax liabilities. Section 549 provides that the trustee may avoid an un-authorized post-petition transfer of property of the estate. 11 U.S.C. § 549. A chapter 13 debtor has standing to pursue an action under § 549. Johnson v. Investment Leasing, Inc. (In re Johnson), 51 B.R. 220, 222 (D.Colo. 1985). The property of the estate, for a chapter 7 and chapter 11 debtor, includes all legal and equitable interests of the debt- or before the filing of a petition. 11 U.S.C. § 541(a)(1). Post-petition earnings of the debtor are specifically excluded from the chapter 7 estate. 11 U.S.C. § 541(a)(6). The chapter 13 estate consists of property that would be included in a bankruptcy estate under chapter 7 but also adds property acquired after commencement and before closing of the case and all earnings of the debtor. 11 U.S.C. § 1306. The IRS received transfers of property and earnings of the debtors, clearly within the broad chapter 13 definition of the “property of the estate.” Accordingly, such property must be returned to the debtors, subject to the following condition. Section 549(d)(1) requires that any turnover action be filed within two years of a post-petition transfer. Thus, any transfer" }, { "docid": "8189263", "title": "", "text": "OPINION SUHRHEINRICH, Circuit Judge. Chapter 13 of the Bankruptcy Code permits “individuals] with regular income” whose debt falls within statutory limits, see 11 U.S.C. §§ 101(30), 109(e), to keep their property if they agree to a court-approved plan to pay creditors out of their future “disposable income.” See 11 U.S.C. §§ 1306(b), 1321, 1322(a)(1), 1328(a). However, if a trustee of the plan or an unsecured creditor objects, a Chapter 13 plan can be confirmed only if the debtor contributes “all ... projected disposable income” to the plan. 11 U.S.C. § 1325(b)(1)(B). The question presented in this consolidated appeal is whether the income that becomes available after the debtors have fully repaid their 401(k) loans (which is allowed by 11 U.S.C. § 1322(f)) is “projected disposable income” to be paid to the unsecured creditors or whether the income can be used to begin making voluntary contributions to the debtors’ 401(k) plans and deemed excludable from both disposable income and property of the estate under 11 U.S.C. § 541(a)(1) and (b)(7). We hold that post-petition income that becomes available to debtors after their 401(k) loans are fully repaid is “projected disposable income” that must be turned over to the trustee for distribution to unsecured creditors pursuant to § 1325(b)(1)(B) and may not be used to fund voluntary 401(k) plans. I. Background On November 20, 2008, Deborah K. Sea-fort filed a petition for relief under Chapter 13 of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Kentucky, Case No. 08-22380. On November 24, 2008, Frederick C. Schuler and Carrie Schuler also filed a joint petition for relief under Chapter 13 of the Bankruptcy Code in the same court, Case No. 08-22417. Both Seafort and Frederick Schuler (collectively “Debtors”) were eligible to participate in their employers’ ERISA 401(k) qualified retirement plans. Debtors were not making any contributions to their employers’ 401(k) retirement plans at the time of the filing of their petitions. Both debtors were in the process of repaying a 401(k) loan to their employers’ retirement plans. Schuler was repaying his 401(k) loan at the rate of" }, { "docid": "12162476", "title": "", "text": "intent to hinder, delay, or defraud a creditor. Tveten, 848 F.2d at 874. Because we reversed the bankruptcy court’s determination of intent to hinder, delay, or defraud a creditor on the exemption issues, the denial of discharge based on the collateral estoppel effect of that finding must also be reversed. C. Section 529 Accounts Lastly, the bankruptcy court ruled that the two Section 529 tuition savings accounts that Addison opened in 2004 for the benefit of his children were property of Addison’s bankruptcy estate and not subject to any exemption. Whether the Section 529 accounts are property of the bankruptcy estate is a legal conclusion reviewed de novo. See Drewes v. Vote (In re Vote), 276 F.3d 1024, 1026 (8th Cir.2002) (“Whether property is included in the bankruptcy estate is a question of law.”) (citation omitted). Addison listed the Section 529 accounts in his amended bankruptcy schedules with a notation that he believed that the accounts were owned by his children, and thus not property of his bankruptcy estate. Nevertheless, in case the accounts were determined to be property of the estate, Addison claimed them as exempt under Minn.Stat. Ann. § 136G.09(12). We conclude that the Section 529 accounts are nonexempt property of Addison’s estate. Section 541(a)(1) of the Code, which was unchanged by BAPCPA, states that “[except as provided in subsections (b) and (c)(2) of this section” a debtor’s bankruptcy estate is comprised of “all legal or equitable interest of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Addison asserts that because he established the accounts for the benefit of his children, he had no legal or equitable interest in the accounts. Addison relies on 26 U.S.C. § 529(c) to support his position. That section, which regards tax treatment of designated beneficiaries and contributors of Section 529 accounts, provides that “[a]ny contribution to a qualified tuition program on behalf of any designated beneficiary ... shall be treated as a completed gift to such beneficiary which is not a future interest in property.” 26 U.S.C. § 529(c). Because any contribution to a Section" }, { "docid": "1377079", "title": "", "text": "year before the date of the filing of the petition if such creditor at the time of such transfer was an insider; and (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. Thus, for the trustee to establish a voidable preference he must prove each of the following seven conditions: (1) a transfer (2) of the debtor’s property (3) to or for the benefit of a creditor (4) for or on account of an antecedent debt (5) made while the debtor was insolvent (6) within 90 days of the filing of the petition in bankruptcy (7) that enables the creditor to receive more than he would under a Chapter 7 liquidation. The second element is the focus of this appeal. Section 541(b) of the Bank ruptcy Code, 11 U.S.C. § 541(b) (1982 and Supp. II 1984), provides that “[property of the estate does not include — (1) any power that the debtor may exercise solely for the benefit of an entity other than the debtor.” Thus, property held in trust by the debtor is not subject to the voidable preference rule of section 547(b). See United States v. Whiting Pools, Inc., 462 U.S. 198, 205 n. 10, 103 S.Ct. 2309, 2314 n. 10, 76 L.Ed.2d 515 (1983). Section 7501 of the Internal Revenue Code provides that “[wjhenever any person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States.” 26 U.S.C. 7501 (1982). It follows that withheld FICA and employee taxes are impressed with a statutory trust and should be excluded from the bankruptcy estate. See id. The government argued that the funds it seized were in trust for the purposes" }, { "docid": "12162477", "title": "", "text": "determined to be property of the estate, Addison claimed them as exempt under Minn.Stat. Ann. § 136G.09(12). We conclude that the Section 529 accounts are nonexempt property of Addison’s estate. Section 541(a)(1) of the Code, which was unchanged by BAPCPA, states that “[except as provided in subsections (b) and (c)(2) of this section” a debtor’s bankruptcy estate is comprised of “all legal or equitable interest of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Addison asserts that because he established the accounts for the benefit of his children, he had no legal or equitable interest in the accounts. Addison relies on 26 U.S.C. § 529(c) to support his position. That section, which regards tax treatment of designated beneficiaries and contributors of Section 529 accounts, provides that “[a]ny contribution to a qualified tuition program on behalf of any designated beneficiary ... shall be treated as a completed gift to such beneficiary which is not a future interest in property.” 26 U.S.C. § 529(c). Because any contribution to a Section 529 account on behalf of a beneficiary is treated as a completed gift to the beneficiary, Addison argues that the accounts are property of the beneficiaries and not of the contributor or owner of the account. We find this argument unavailing for several reasons. First, § 529(c) deals with the “tax treatment” of contributions to Section 529 accounts, not ownership of the accounts. Second, the accounts Addison established for his children list Addison as the “owner” of the accounts and the Minnesota statutes governing the accounts provide that the owner of the account — not the beneficiary — is the only person entitled to select or change the beneficiary of the account or request distributions from the account. Minn.Stat. Ann. § 136G.09(2). Third, contributions to the accounts “made by persons other than the account owner become property of the account owner,” not the beneficiary. Id. at § 136G.09(1). Additionally, as the account owner Addison “may request a nonqualified distribution from an account at any time ... subject to a federal additional tax” on the earnings" }, { "docid": "17569422", "title": "", "text": "to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. “Equality of distribution among creditors is a central policy of the Bankruptcy Code. According to that policy, creditors of equal priority should receive pro rata shares of the debtor’s property.” Begier v. IRS, 496 U.S. 53, 58, 110 S.Ct. 2258, 2262-63, 110 L.Ed.2d 46 (1990). This policy is furthered by § 547(b), which permits “a trustee in bankruptcy to avoid certain preferential payments made before the debtor files for bankruptcy. This mechanism prevents the debtor from favoring one creditor over others by transferring property shortly before filing for bankruptcy.” Id. at 58,110 S.Ct. at 2263. To avoid a preferential transfer, the trustee bears the burden of proving all five elements listed in § 547(b). Warsco v. Preferred Technical Group, 258 F.3d 557, 564 (7th Cir.2001). The parties do not dispute that the trustee has met his burden and proved the five elements listed. The sole issue contested by the parties is the “threshold requirement” in the statute: whether the payments made to Egidi’s MBNA credit card account from her other credit card accounts constitute “transfer[s] of an interest of the debtor in property.” 11 U.S.C. § 547(b); Parks v. FIA Card Services, N.A (In re Marshall), 550 F.3d 1251, 1254 (10th Cir.2008). Section 547(b)’s avoidance power is limited to transfers of “property of the debtor,” which the Supreme Court has defined as “that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings.” Begier, 496 U.S. at 58, 110 S.Ct. at 2263. “[Property that would not have been available for distribution to his creditors in a bankruptcy proceeding” is not “property of the debtor” under § 547(b). Id. The 1984 amendments to the Bankruptcy Code changed the term “property of the debtor” to “an interest of the debtor in property,” but the Supreme" }, { "docid": "4619825", "title": "", "text": "are essentially “held in trust” by the retailer for the taxing authority.... King v. Tennessee Department of Revenue (In re King), 117 B.R. 339, 341 (Bankr.W.D.Tenn.1990) (citations omitted). Based on this analysis, Judge Brown concluded that “retail sales taxes in Tennessee qualify as ‘trust fund taxes.’ ” Id. at 342. This court agrees with and has followed Judge Brown’s ruling in King. Kuykendall v. State of Tennessee Department of Revenue (In re Kuykendall), Adv. Proc. No. 90-3128, slip op. (Bankr.E.D.Tenn. Jan. 8, 1991). Accordingly, sales taxes collected by the debtor and trustee during the pendency of the debtor’s Chapter 11 case constitute trust fund taxes. The United States Supreme Court recently held that a debtor’s prepetition payments of trust fund taxes to the Internal Revenue Service (IRS) from its general accounts were not transfers of “property of the debtor” under 11 U.S.C.A. § 547(b) (West 1979), but were transfers of funds held in trust, and, accordingly, could not be avoided as preferences. Begier v. Internal Revenue Service, — U.S.-, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990). Consideration of the facts giving rise to the Court’s decision in Begier is important to a resolution of the contested matter presently before the court. The debtor, American International Airways, Inc. (AIA), had fallen behind in payments of its federal income, FICA, and excise taxes to the IRS. The IRS ordered the debtor to deposit all trust fund taxes it collected thereafter into a separate bank account. The debtor established the account but did not deposit sufficient funds to cover the entire amount of its trust fund obligations. It nonetheless remained current on these obligations by making up the deficiency from its general operating account. AIA commenced a case under Chapter 11, which was subsequently converted to Chapter 7. The Chapter 7 trustee filed a preference action in the bankruptcy court seeking to recover the entire amount the debtor paid the IRS for trust fund taxes within the ninety days preceding the filing of its bankruptcy petition. The bankruptcy court refused to permit the trustee to recover the money paid from the separate account" }, { "docid": "15020395", "title": "", "text": "the estate acquires after the commencement of the case.” These § 541 “property of the estate” definitions have been directly linked with the term “interest of the debtor in property” under § 547(b) by a number of courts, including the Supreme Court. First, in Begier v. IRS, a case concerning whether payment by a corporate debtor of withheld payroll, income, and excise taxes (i.e., “trust-fund taxes”) to the IRS was an avoidable preference under § 547, the Supreme Court recognized that the term “property of the debtor” is not defined for purposes of § 547. The Court then observed, however, that, given the purposes of the preference avoiding statute, the term “is best understood as that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings.” Thus, the court concluded: For guidance, then, we must turn to § 541, which delineates the scope of “property of the estate” and serves as the post-petition analog to § 547(b)’s “property of the debt- or.” The Court, in Begier, then used § 541’s primary definition of “property of the estate” to make an inquiry into the “equitable” interests of the debtor in the later transferred property. In somewhat similar circumstances, the Eighth Circuit, in In re Bellanca Aircraft Corp., faced the question whether proceeds of airplane sales that were seemingly in the hands and under the control of a debtor but which were soon passed on to a third party were “property of the debtor” under § 547(b). In this context, the court made the following observation: Because “property of the estate” includes “all legal or equitable interests of the debt- or in property ... [,]” § 541(a)(1), “property of the debtor” as used in the definition of a voidable preference, see § 547(b), is for these purposes equivalent to “property of the estate.” Finally, a bankruptcy court, in a carefully considered opinion concerning a preference avoidance action under § 547(b), noted the absence of a definition of “property” in that statute, but found that § 541’s definition of “property of the estate”" }, { "docid": "18675429", "title": "", "text": "the debtor during his slide into bankruptcy....” H.R.Rep. No. 595, 95th Cong., 1st Sess. 177-78 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 5963, 6138. As stated by the Supreme Court in Begier v. IRS, 496 U.S. 53, 58, 110 S.Ct. 2258, 2262-63, 110 L.Ed.2d 46 (1990), this authority is provided to foster the Bankruptcy Code’s “central policy” of “equality of distribution” among creditors. “According to that policy, creditors of equal priority should receive pro rata shares of the debtor’s property.” Id. In order to qualify as a preference, transfers of an interest of the debtor’s property must meet all of the following elements set forth in section 547(b): (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A)on or within 90 days before the date of the filing of the petition; ... (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. 11 U.S.C. § 547(b). It is quite clear that in order to avoid a payment as preferential, the trustee or debtor-in-possession bears the burden of establishing each of the elements of section 547(b). See 11 U.S.C. § 547(g); Bluegrass Ford-Mercury, Inc. v. Farmers Nat’l Bank of Cynthiana (In re Bluegrass Ford-Mercury, Inc.), 942 F.2d 381, 385 (6th Cir.1991); Sapir v. Keener Lumber Co., Inc. (In re Ajayem Lumber Corp.), 143 B.R. 347, 351 (Bankr.S.D.N.Y.1992); 4 Collier on Bankruptcy, ¶ 547.21[5], 547-93 (15th ed. 1994). Therefore, the threshold determination of whether the payments in issue are avoidable preferences requires this Court to decide whether Plaintiff has proven all of the elements required by section 547(b). Inasmuch as the parties have stipulated that the first four elements of section 547(b) have been met, at issue is whether Plaintiff has satisfied section 547(b)(5)," }, { "docid": "16503745", "title": "", "text": "should be affirmed. A. Section 517(b) and the Earmarking Doctrine Section 547(b) provides: (b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debt- or in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A) on or within 90 days before the date of the filing of the petition; or (B) between 90 days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. 11 U.S.C. § 547(b) (emphasis added). The parties agree that, with the exception of the element here that the Transfer be a “transfer of an interest of the debtor in property,” all elements of § 547(b) have been met. The phrase “transfer of an interest of the debtor in property” in § 547(b) is not expressly defined by the Bankruptcy Code, but it is well-established that it is broadly defined, and guidance is to be drawn from the definition of “property of the estate” set forth in § 541(a). Begier v. IRS, 496 U.S. 53, 58-59, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990); Bailey v. Hazen (In re Ogden), 243 B.R. 104, 112-13 (10th Cir. BAP 2000) (relying on Payne v. Clarendon Nat’l Ins. (In re Sunset Sales, Inc.), 220 B.R. 1005, 1013 (10th Cir. BAP 1998), aff'd 195 F.3d 568 (10th Cir.1999)). The term “property of the estate” is defined, in relevant part, as “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). See generally United" }, { "docid": "1146304", "title": "", "text": "A chapter 13 debtor has standing to pursue an action under § 549. Johnson v. Investment Leasing, Inc. (In re Johnson), 51 B.R. 220, 222 (D.Colo. 1985). The property of the estate, for a chapter 7 and chapter 11 debtor, includes all legal and equitable interests of the debt- or before the filing of a petition. 11 U.S.C. § 541(a)(1). Post-petition earnings of the debtor are specifically excluded from the chapter 7 estate. 11 U.S.C. § 541(a)(6). The chapter 13 estate consists of property that would be included in a bankruptcy estate under chapter 7 but also adds property acquired after commencement and before closing of the case and all earnings of the debtor. 11 U.S.C. § 1306. The IRS received transfers of property and earnings of the debtors, clearly within the broad chapter 13 definition of the “property of the estate.” Accordingly, such property must be returned to the debtors, subject to the following condition. Section 549(d)(1) requires that any turnover action be filed within two years of a post-petition transfer. Thus, any transfer to the IRS after January 20, 1987 (two years before the filing of the adversary action) not consistent with the terms of the debtors’ chapter 13 plan for payments of pre-petition liabilities, must be set aside. This Court orders all such property to be returned to the debtors forthwith. However, because the statute of limitations had run, the IRS may retain any property acquired from the debtors before January 20, 1987. III. VIOLATIONS OF THE AUTOMATIC STAY Section 362 provides an automatic stay of proceedings against a debtor immediately following the filing of a bankruptcy petition. 11 U.S.C. § 362. The importance of the automatic stay in bankruptcy is made clear in the legislative history of section 362: The automatic stay is the most fundamental debtor protection provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove" } ]

[ { "docid": "15510710", "title": "", "text": ". . . [her] to full status as a stewardess, with full seniority and back pay.” United refused, and on November 22, 1971 Collins filed a charge of discrimination with the EEOC alleging she had been discriminated against based on her sex. Section 706(d) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(d), as written at the time the charge was filed, required an aggrieved person not utilizing a state remedy to file a charge with the EEOC within 90 days after the alleged unlawful employment practice occurred. The satisfaction of this statutory requirement is a necessary prerequisite to commencement of a court action under the statute. See Griffin v. Pacific Maritime Association, 478 F.2d 1118, 1120 (9th Cir. 1973), cert. denied, 414 U.S. 859, 49 S.Ct. 69, 38 L.Ed.2d 109 (1973); Cunningham v. Litton Industries, 413 F.2d 887, 889 (9th Cir. 1969). Cf. Wong v. Bon Marche, 508 F.2d 1249 (9th Cir. 1975); Gates v. Georgia-Pacific Corporation, 492 F.2d 292, 294-295 (9th Cir. 1974). Collins contends that here the 90-day filing requirement is satisfied because the alleged violation is a continuing one. See Pacific Maritime Association v. Quinn, 491 F.2d 1294, 1296, n. 6 (9th Cir. 1974). We are not persuaded. We cannot accept Collins’ argument that her continuing nonemployment as a stewardess resulting from the alleged unlawful practice is itself a violation of the Act. Under the statute, it is the alleged unlawful act or practice — not merely its effects — which must have occurred within the 90 days preceding the filing of charges before the EEOC. Were we to hold otherwise, we would undermine the significance of the Con-gressionally mandated 90-day limitation period. Nor can we accept Collins’ further argument that United’s denial of her request for reinstatement during the 90-day period preceding her filing of charges was a new and separate discriminatory act or somehow rendered the initial violation, if any, a continuing one. In this context, a request for reinstatement is wholly different from a new application for employment — it seeks to redress the original termination. As the Third Circuit aptly" } ]

[ { "docid": "22846080", "title": "", "text": "to deny him tenure. See id. Under the college’s policy, junior faculty who are denied tenure are offered a “terminal” contract to teach one additional year. When that contract expires, so too does the employment relationship. The Court recognized that the statute of limitations commenced when Ricks was notified that he would not receive tenure, and then stated, “[i]t is sim ply insufficient for Ricks to allege that his termination ‘gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination.’ ” See id. at 252-53, 101 S.Ct. 498. In discussing Ricks, this court stated that “Ricks, on learning of the denial of tenure, would have notice of all allegedly wrongful acts that he later sought to challenge, [and] the statute of limitations must be deemed to commence at that time.” Hoesterey v. City of Cathedral City, 945 F.2d 317, 319 (9th Cir.1991). We noted that “the termination of Ricks’ employment was not an independent discriminatory act, but merely the ‘delayed, but inevitable, consequence of the denial of tenure.’” Id.; see also London v. Coopers & Lybrand, 644 F.2d 811, 816 (9th Cir.1981) (“Absent special circumstances, a single act by an employer adverse to an employee’s interests, such as a discharge, layoff, or failure to transfer or promote, begins the running of the statute of limitations and the natural effects of the allegedly discriminatory act are not regarded as ‘continuing.’ ”). Likewise, Knox had notice of all the wrongful acts she wished to challenge at the time of the suspension letter because the letter informed her that she was permanently denied all visitation or mail privileges. See, e.g. Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981) (holding that a wrongful termination claim accrued at the time the plaintiff received notice of the termination, not at the time of the termination itself); see also Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir.1994) (“[T]he purpose of permitting a plaintiff to maintain a cause of action on the continuing violation theory is to permit the inclusion of acts" }, { "docid": "4984799", "title": "", "text": "the appraisal with Employee Relations Manager McGrath. Prior to the date Shell received notice of his EEOC charge, however, Womack admitted that he never advised anyone at Shell that his race was allegedly a factor in the 1977 appraisal. No facts support a finding that Dastugue either knew or should have known that Womack considered the 1977 appraisal racially biased. The record conclusively establishes that in 1977 Womack had knowledge of all the relevant facts. 9. For the purpose of the time limitations under 42 U.S.C. § 2000e-5(e), the proper focus is upon the date of the alleged discriminatory act, “not upon the time that the consequences of that act became most painful.” Delaware State College v. Ricks, - U.S. -, -, 101 S.Ct. 498, 505, 66 L.Ed.2d 431 (1980), citing Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979). The record conclusively establishes that the alleged discriminatory act occurred in 1977 and that Womack’s EEOC charge was not filed until June 1979. 10. Womack cannot successfully contend that the denial of promotion was a “continuing violation;” i. e., the “present effect” of the alleged “past discrimination.” In United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the Supreme Court held that a Title YII defendant “was entitled to treat [a] past act as lawful after [plaintiff] failed to file a [timely] charge of discrimination.” The Supreme Court stated: A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed.... [Separately considered, it is merely an unfortunate event in history which has no present legal consequences. 431 U.S. at 558, 97 S.Ct. at 1889. The Evans decision casts serious doubts upon the vitality of the “present effect” theory of a continuing violation: The “present effects of past discrimination” theory suffered a severe, if not mortal, blow in Evans. The majority opinion, by focusing on whether a current violation exists, appears to foreclose claims based solely upon the residual effects of discriminatory conduct not made" }, { "docid": "23524441", "title": "", "text": "in the federal courts. Rather, we sustain that portion of her complaint dealing with post-discharge conduct because she has therein stated a violation of § 1981 separate and apart from her allegation that she was discharged for discriminatory reasons. Accordingly, we affirm the dismissal of London’s charge of discriminatory discharge and will remand for further proceedings dealing with her post-discharge harassment allegations and her pendent state claim. For the purposes of our discussion here, we separate London’s allegations into two categories: first, the allegation of a discriminatory discharge as a separate category to itself, and second, the allegations of a pattern of discriminatory post-discharge conduct. As noted earlier, the allegation of a discriminatory discharge on its face falls outside the limitation period, while the allegations of post-discharge conduct appear to fall within the limitations period. Addressing ourselves first to the issue of whether London’s allegations of a continuing pattern of post-discharge conduct rescue the claim of discriminatory discharge from the statute of limitations, we conclude that London’s termination was a separate, discrete act whose effects do not continue into the present for the purposes of the “continuing violation” doctrine. As the Supreme Court has repeatedly advised us, our focus in determining whether an alleged civil rights violation is “continuing” is upon the issue whether a present violation still exists, not upon the present effect of a past employment decision. See Delaware State College v. Ricks, - U.S. -, -, 101 S.Ct. 498, 504, 66 L.Ed.2d 431, 440 (1980); United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). Absent special circumstances, a single act by an employer adverse to an employee’s interests, such as a discharge, layoff, or failure to transfer or promote, begins the running of the statute of limitations and the natural effects of the allegedly discriminatory act are not regarded as “continuing.” See, e. g., Nuss v. Pan Am. World Airways, Inc., 634 F.2d 1234 (9th Cir. 1980); Collins v. United Air Lines, Inc., 514 F.2d 594 (9th Cir. 1975); Griffin v. Pacific Maritime Association, 478 F.2d 1118 (9th Cir.)," }, { "docid": "9899098", "title": "", "text": "1314, 1326 (11th Cir.2000) (quoting Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 448 (11th. Cir.1993)). As the Supreme Court explained: [t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.... The emphasis is not upon the effects of earlier employment decisions; rather, it is upon whether any present violation exists. Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980) (internal citations and quotations omitted). Furthermore, “[t]he continuing violation doctrine does not exist to give a second chance to an employee who allowed a legitimate Title VII claim to lapse.” Roberts v. Gadsden Memorial Hosp., 835 F.2d 793, 800 (11th Cir.1988). Plaintiffs argue that West’s employee stock program constituted a present violation because the payment of dividends was a wage premium that enhanced employee compensation. Plaintiffs contend that this wage premium presents a situation more akin to the disparate salary and insurance coverage claims found in Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), and Beavers v. American Cast Iron Pipe Co., 975 F.2d 792 (11th Cir.1992), to constitute a present violation, than the claims of a single discriminatory act followed by neutral, nondiscriminatory consequences as found in Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); and Ross v. Buckeye Cellulose Corp., 980 F.2d 648 (11th Cir.1993). In Bazemore, the North Carolina Agricultural Extension Service had maintained two separate, racially segregated branches and paid black employees less than white employees. See 478 U.S. at 394, 106 S.Ct. at 3006. The Extension Service merged the two branches, but some pre-existing salary disparities remained. See id. Because these disparities resulted solely from discrimination that occurred prior to Title VIPs effective date, the Extension Service maintained that it should not be required to affirmatively eliminate them. See id. at 394-95, 106 S.Ct. at 3006. The Supreme Court rejected this argument, holding" }, { "docid": "7790487", "title": "", "text": "case because plaintiff had failed to file within 180 days of accepting the terminal contract. The Supreme Court upheld the district court’s dismissal, reversing this court’s decision. According to the Supreme Court in Ricks, supra, 449 U.S., at 257, 101 S.Ct. at 504, to determine the timeliness of an EEOC complaint, a court must “identify precisely the ‘unlawful employment practice’ of which [plaintiff] complains.” In Ricks the plaintiff challenged the decision to deny him tenure. The Supreme Court held that the filing limitation period commenced at the time the tenure decision was made and fully communicated to Ricks. “That is so even though one of the effects of the denial of tenure — the eventual loss of a teaching position — did not occur until later.... The emphasis is not upon the effects of earlier employment decision; rather, it ‘is [upon] whether any present violation exists.’ ” Id. at 257, 101 S.Ct. at 504 (emphasis in original), citing United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). See also Masco v. United Airlines, 574 F.2d 1127 (3d Cir. 1978). The Court explained that “. . . termination of employment at Delaware State is a delayed, but inevitable, consequence of the denial of tenure. In order for the limitations periods to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure. But no suggestion has been made that Ricks was treated differently from other unsuccessful tenure aspirants. Rather, in accord with the College’s practice, Ricks was offered a one-year ‘terminal’ contract with explicit notice that his employment would end upon its expiration.” Ricks, supra at 257-58, 101 S.Ct. at 504-05. Returning to the case before us, we must likewise identify precisely the unemployment practice of which plaintiffs complain and separate it from the inevitable, but neutral, consequences of the allegedly discriminatory practice. Plaintiffs complain of defendants’ refusal to place them on the" }, { "docid": "5270319", "title": "", "text": "emphasis should not be placed on mere continuity; the critical question is whether any present violation exists.” United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977) (emphasis supplied). To demonstrate a continuing violation a plaintiff must show “a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period.” Valentino v. United States Postal Service, 674 F.2d 56, 65 (D.C.Cir.1982) (quoting B. Schlei & P. Grossman, Employment Discrimination Law 232 (1979)). See, e.g., Rich v. Martin Marietta Corp., 522 F.2d 333, 337 (10th Cir.1975) (“Generally, the statistics presented ... show blacks and Spanish-Americans to be concentrated ... where they tend not to be promoted”); Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 983 (D.C.Cir.1973) (Defendant “maintain[s] a practice of refusing to hire blacks ... ”); Corbin v. Pan Am World Airways, Inc., 432 F.Supp. 939, 944 (N.D.Cal.1977) (“Plaintiff’s claims of a repeated failure to promote and a denial of equal pay involve ongoing aspects of [a current] employer-employee relationship”). Completed acts, such as termination through discharge or resignation, Olson v. Rembrandt Printing Co., 511 F.2d at 1234; a job transfer, Younger v. Glamorgan Pipe & Foundry Co., 310 F.Supp. 195, 197 (W.D.Va.1969); or discontinuance of a particular job assignment, Gordon v. Baker Protective Services, Inc., 358 F.Supp. 867, 869 (N.D.Ill.1973), are not acts of a “continuing” nature. A plaintiff may not circumvent Title VII’s stringent time limits merely by characterizing a completed act of discrimination as a “continuing violation,” such as plaintiff has alleged. Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980). Conclusory allegations of discrimination are insufficient to satisfy the requirements of Fed.R. Civ.P. 56(e) that the party opposing summary judgment must set forth specific facts demonstrating that a genuine issue of material fact exists. See L & L Started Pullets, Inc. v. Gourdine, 762 F.2d 1 (2d Cir.1985); Meiri v. Dacon, 759 F.2d 989 (2d Cir.1985); Quarles v. General Motors Corp. (Motors Holding" }, { "docid": "22950478", "title": "", "text": "utilize a system that locks in the effects of past discriminatory hiring decisions; it is a very different thing to lock in a discriminatory method of making hiring decisions .... Nothing in Teamsters implies that by labelling a non-job-related system of employee selection a ‘merit’ system, an employer can avoid the command of Title VII that it henceforth select its workforce in a non-discriminatory fashion. Guardians III, supra, 633 F.2d at 253 (emphasis in original). Accordingly, we conclude that the City could be held liable under Title VII for its post-Act appointments based on the 1971 test. B. The 300-Day Limitation Defendants’ other principal challenge to the district court’s ruling under Title VII is based on the statute of limitations established by § 706(e) of the Act. That section provides that in order to maintain a suit under Title VII, a plaintiff must have filed a charge of discrimination with EEOC within 300 days of the alleged discriminatory act. 42 U.S.C. § 2000e-5(e) (1976). See, e. g., United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n.4, 97 S.Ct. 1885, 1887 n.4, 52 L.Ed.2d 571 (1977); Cates v. Trans World Airlines, Inc., 561 F.2d 1064 (2d Cir. 1977). The City’s last hirings based on the 1971 exam occurred on May 2, 1973, and there were no further hirings until after 1975. Plaintiffs’ first EEOC charge pertaining to defendants’ hiring practices was filed in October 1975. Defendants argue, therefore, that insofar as plaintiffs’ claims relate to the 1973 and earlier hirings, they are barred by the 300-day period of limitations. This contention takes an impermissibly myopic view of the nature of the City’s unlawful conduct. As a general matter, the mere continuation of a discriminatory act’s effects, when the act itself occurred prior to the pertinent limitations period, is not sufficient to support recovery under Title VII. United Air Lines, Inc. v. Evans, supra, 431 U.S. at 558, 97 S.Ct. at 1889. See also Delaware State College v. Ricks,-U.S.-, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). The act that constitutes the violation must be “still fresh” within the statutory period." }, { "docid": "4423868", "title": "", "text": "who from that date forward [date of the Act] made all its employment decisions in a wholly non-discriminatory way did not violate Title VII even if it had maintained an all-white work force by purposefully excluding Negroes.” Hazelwood School District v. United States, 433 U.S. 299, 309, 97 S.Ct. 2736, 2742, 53 L.Ed.2d 768 (1977). Along the same line, in United Airlines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), a present seniority and thus salary disparity which existed on account of a previous unlawful termination on account of sex which had resulted in loss of seniority was held not to be actionable when no complaint had been filed by the plaintiff on account of her unlawful termination, although the court acknowledged that “the seniority system gives present effect to a past act of discrimination,” 431 U.S. at 558, 97 S.Ct. at 1889 (1977). To the same effect are Fowler v. Birmingham News Co., 608 F.2d 1055 (5th Cir.1979) (present effect of uncomplained of racially discriminatory placement on seniority list held not actionable); Trabucco v. Delta Airlines, 590 F.2d 315 (6th Cir.1979) (present lower pay and fringe benefits resulting from past uncomplained of unlawful reclassification on account of sex held not actionable); Cates v. Trans World Airlines, Inc., 561 F.2d 1064 (2d Cir.1977) (present adverse seniority effects resulting from an uncomplained of racially discriminatory refusal to hire are not actionable). See also Schlei and Grossman, Employment Discrimination Law (2d Ed.), p. 1053. D. Salaries Much of the dispute in this case centers around salaries of the county' agents, whether full agent, associate agent, or assistant agent. The claim is that the salaries of black agents were lower because of their race. The district court correctly declined to compare or include the salaries of County Chairmen with those of the agents. There is about a $4000 average salary difference between chairman and agent to begin with. The chairman is the head of the county based employees of the Extension Service. He is not routinely promoted from agent; the method of his selection is entirely different, and counting" }, { "docid": "23524443", "title": "", "text": "cert. denied, 414 U.S. 859, 94 S.Ct. 69, 38 L.Ed.2d 109 (1973); Fowler v. Birmingham News Co., 608 F.2d 1055 (5th Cir. 1979). We see no special circumstances justifying a departure from the rule in this instance. While the adverse job references obviously would not have occurred but for London’s termination, they are not the sort of consequences which mutually and inevitably flow from a termination. They represent a separate form of alleged employment discrimination whose consequences would be different from those suffered as a result of a simple discharge. We hold that London’s claim of discriminatory discharge is time-barred. Turning to the question of whether London’s allegations of post-discharge conduct are cognizable, we observe that we now deal more with an issue of substantive law under § 1981 than with a purely procedural matter of statutes of limitations. As the parties have framed the issue on appeal, we must determine whether the allegations of London’s complaint state a violation of § 1981. We heed the admonition of the United States Supreme Court that a complaint should not be dismissed for failure to state a claim “... 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.\" Conley v. Gibson, 355 U.S. 41, 45, 46, 78 S.Ct. 99, 101, 102, 2 L.Ed.2d 80 (1957). Paragraph Seven of the Second Amended Complaint alleges, in effect, two types of discriminatory conduct. Allegations of the preparation and dissemination of negative performance reports, and of informing other accounting firms that London was a “troublemaker” involve the giving of adverse employment references to potential employers. Allegations that Coopers & Lybrand had informed both the U.S.C. placement office and potential employers that London had filed discrimination charges involve retaliation for filing such charges. We must consider whether either class of activities is cognizable under § 1981. There is little question that the dissemination of adverse employment references can constitute a violation of Title VII if motivated by discriminatory intent. In Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711 (D.C.Cir.1978)," }, { "docid": "22859585", "title": "", "text": "decision into a continuing violation. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). At one time, it was thought that this “continuing effects” theory described a viable third type of continuing violation case, in addition to systemic and serial violations. But the Court has made it clear that the focus of the inquiry in continuing violation cases should be on “whether any present violation exists,” not whether there are residual effects of past discriminatory conduct to which the statute does not apply. Id (holding that a discriminatory act, not merely the effects of a past discriminatory act, must occur within the statute of limitations period of Title VII); see Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980); Sabree, 921 F.2d at 400. “[A] court evaluating a ‘continuing violation’ argument must distinguish between a continuing violation and the continuing effects of a prior, yet discrete and no longer existent, discriminatory act.” Cajigas v. Banco de Ponce, 741 F.2d 464, 469 (1st Cir. 1984); see Pilgrim, 118 F.3d at 868-69; Kassaye v. Bryant College, 999 F.2d 603, 606 (1st Cir.1993). We recently rejected a plaintiff’s theory that the failure to restore her to her prior position formed part of a continuous chain of misconduct extending beyond the time deadline. Morrison, 108 F.3d at 443. We held that the employer’s “inaction [was] not enough.” Id. We pointed to what we had said in a somewhat analogous situation: “ ‘it was incumbent upon [the plaintiff] to allege facts giving some indication that the later refusals were themselves separate ... violations.’ ” Valles Velazquez, 736 F.2d at 833 (quoting Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1018 (1st Cir.1979)). The same reasoning applies to the instant case. Even though DeNovelhs’s sham detail had not been remedied by the time the Act became effective, the focus at the liability stage of our inquiry is the date the employer made the allegedly discriminatory decision to detail him, even though the decision’s effects still persisted after" }, { "docid": "19538824", "title": "", "text": "cases: An act done with discriminatory intent must have occurred within the limitations period. We have repeatedly held that the time to pursue an employment discrimination claim starts running when a discriminatory act occurs, and that a fresh limitations period does not start upon the occurrence of a later nondiscriminatory act-even if that later act carries forward the effects of the earlier discrimination. See, e.g., United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); Delaware State College v. Ricks, 449 U.S. 250, 257-258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981)(per curiam ); Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 907-908, 911, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989); National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 628, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007). Without mentioning this consistent line of precedent, the Court categorically declares that the limitations period for constructive discharge cases starts upon the employee's resignation, no matter when the last discriminatory act occurred. This effectively disposes of the discriminatory-intent requirement. Rather than jettison our precedent, I would hold that the limitations period for constructive discharge claims-like all other employment discrimination claims-starts running upon a discriminatory act of the employer. But I would also hold that an employee's resignation can, in many cases, be considered a discriminatory act of the employer. This is so where an employer subjects an employee to intolerable working conditions with the discriminatory intent to force the employee to resign . In these circumstances, the employee's consequent resignation is tantamount to an intentional termination by the employer, and so gives rise to a fresh limitations period just as a conventional termination would. Absent such intent, however, the resignation is not an independent discriminatory act but merely a delayed consequence of earlier discrimination. The resignation may be a basis for enhancing damages in a claim brought on the underlying discrimination, but" }, { "docid": "4984800", "title": "", "text": "promotion was a “continuing violation;” i. e., the “present effect” of the alleged “past discrimination.” In United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the Supreme Court held that a Title YII defendant “was entitled to treat [a] past act as lawful after [plaintiff] failed to file a [timely] charge of discrimination.” The Supreme Court stated: A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed.... [Separately considered, it is merely an unfortunate event in history which has no present legal consequences. 431 U.S. at 558, 97 S.Ct. at 1889. The Evans decision casts serious doubts upon the vitality of the “present effect” theory of a continuing violation: The “present effects of past discrimination” theory suffered a severe, if not mortal, blow in Evans. The majority opinion, by focusing on whether a current violation exists, appears to foreclose claims based solely upon the residual effects of discriminatory conduct not made the subject of a timely charge. B. Schlei and P. Grossman, Employment Discrimination Law at 234 (BNA 1979 Supp.). See Wood v. Southwestern Bell Tel. Co., 442 F.Supp. 41 (E.D.Mo.1977), rev’d on other grounds, 580 F.2d 339 (8th Cir. 1978) (failure to promote based upon past denial of training held no present violation). 11. The Supreme Court significantly elaborated on United Airlines v. Evans in Delaware State College v. Ricks, - U.S. -, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), in which the Supreme Court reaffirmed that a “continuing violation” theory is applicable “only if a present violation exists.” See Milton v. Brown, 25 F.E.P. 134, 138 n.13 (D.C.Cir.1981). In Ricks, a college professor filed a Title VII action challenging a termination that was the consequence of a denial of tenure which occurred approximately one year earlier. Ricks did not file a timely EEOC charge after the denial of tenure. The Supreme Court first “identif[ied] precisely the ‘unlawful employment practice’ of which [Ricks] complain[ed],” and noted that Ricks claimed that the denial of tenure and" }, { "docid": "1156463", "title": "", "text": "1981 was untimely. “It should not be forgotten that time-limitations provisions themselves promote important interests^ ‘the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones.’ ” Delaware State College v. Ricks, 449 U.S. 250, 259-60, 101 S.Ct. 498, 505, 66 L.Ed.2d 431 (1980) (quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-64, 95 S.Ct. 1716, 1721-22, 44 L.Ed.2d 295 (1975)). The limitations period for employment discrimination claims under Title VII and section 1981 commences on the date of the alleged unlawful employment practice. Ricks, 449 U.S. at 258, 101 S.Ct. at 504 (Title VII and section 1981 claims); see Perez v. Laredo Junior College, 706 F.2d 731, 733 (5th Cir.1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 708, 79 L.Ed.2d 172 (1984) (“In deciding when the statute of limitations commences to run under §§ 1981 and 1983, we look to the Title VII cases.”); Boyd v. Madison County Mut. Ins. Co., 653 F.2d 1173, 1176 (7th Cir.1981), cert. denied, 454 U.S. 1146, 102 S.Ct. 1008, 71 L.Ed.2d 299 (1982) (Title VII claim). In order to satisfy the statute of limitations requirement under Title VII or section 1981, a plaintiff must establish a “present violation” by showing that the alleged discriminatory act took place during the relevant limitations period. See Ricks, 449 U.S. at 258, 101 S.Ct. at 504; United Airlines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). The complaint cannot be based merely on the present effect of an act of discrimination which took place before the limitations period. Ricks, 449 U.S. at 258, 101 S.Ct. at 504; see Evans, 431 U.S. at 558, 97 S.Ct. at 1889. For instance, in Evans, the plaintiff sued her employer for an alleged continuing sex discrimination violation. Evans had been forced to resign from her flight attendant position because of the company’s “no marriage” policy for female flight attendants. Subsequently, this policy was deemed to violate Title" }, { "docid": "16102078", "title": "", "text": "§ 213.111(1). Failure to meet these deadlines bars the claim. See Hill v. John Chezik Imports, 797 S.W.2d 528, 529 (Mo.App.1990); Missouri Pac. R.R. Co. v. Missouri Comm’n on Human Rights, 606 S.W.2d 496, 502 (Mo.App.1980). In cases construing the analogous requirements of Title VII, federal courts have concluded that a discrete, adverse employment action, such as a discharge, layoff, or failure to promote, “constitutes a completed act at the time it occurred.” Boge v. Ringland-Johnson-Crowley Co., 976 F.2d 448, 451 (8th Cir.1992). The time for filing an administrative charge or commencing a lawsuit runs from the date of such a discriminatory act, even if its effects on the injured employee are long-lasting. See Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 167 (8th Cir.1995) (en banc). “Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.” Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980). Thus, if such an act is not timely challenged, the right to relief expires: A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977), quoted favorably in Missouri Pac. R.R., 606 S.W.2d at 501. Applying this principle, we agree with the district court that Gipson’s challenges to discrete, adverse employment actions are time-barred under the MHRA. His claim for denied raises is barred because the denials occurred more than 180 days before he filed his Charge. The claim for the alleged discriminatory demotion and assignment to a rural sales territory is barred because these actions occurred in March 1989, more than two years before he filed this lawsuit. The claim for" }, { "docid": "1156464", "title": "", "text": "County Mut. Ins. Co., 653 F.2d 1173, 1176 (7th Cir.1981), cert. denied, 454 U.S. 1146, 102 S.Ct. 1008, 71 L.Ed.2d 299 (1982) (Title VII claim). In order to satisfy the statute of limitations requirement under Title VII or section 1981, a plaintiff must establish a “present violation” by showing that the alleged discriminatory act took place during the relevant limitations period. See Ricks, 449 U.S. at 258, 101 S.Ct. at 504; United Airlines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). The complaint cannot be based merely on the present effect of an act of discrimination which took place before the limitations period. Ricks, 449 U.S. at 258, 101 S.Ct. at 504; see Evans, 431 U.S. at 558, 97 S.Ct. at 1889. For instance, in Evans, the plaintiff sued her employer for an alleged continuing sex discrimination violation. Evans had been forced to resign from her flight attendant position because of the company’s “no marriage” policy for female flight attendants. Subsequently, this policy was deemed to violate Title VII and was discontinued. When Evans was rehired several years later, she was given no seniority credit for her prior service. She sued, claiming that the airline’s seniority policy caused her to suffer in the present the deleterious effect (no seniority) of the company’s past act of forcing her to resign. The Supreme Court rejected Evans’ theory, explaining that, although “the seniority system gives present effect to a past act of discrimination, ... [a] discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed____ [I]t is merely an unfortunate event in history which has no present legal consequences.” 431 U.S. at 588, 97 S.Ct. at 1889. In Ricks, the plaintiff had been a faculty member at Delaware State College who was notified that he was denied tenure. His employment at the college ended more than a year after the tenure decision. Ricks filed an EEOC charge approximately three months before his employment terminated. He then filed suit, alleging" }, { "docid": "17987804", "title": "", "text": "until plaintiff finally retired in 1977. This position, however, has consistently been rejected for the reason that while employees who have been demoted continue to feel the effects of that demotion in terms of reduced salary and benefits, as plaintiff alleges is the situation at bar, “the critical question is whether any present violation exists.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977) (emphasis in original); accord, Ricks, supra, 449 U.S. at 257-58, 101 S.Ct. at 504 (“[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination”). No such present violation is alleged in the complaint, which states the three acts allegedly constituting discrimination — the 1972 demotion, the 1976 demotion, and plaintiff’s retirement — separately and without any attempt at connecting them. Moreover, the requisite present violation is not found in the reference contained in the December 1975 appraisal of plaintiff in which plaintiff is characterized as “nonpromotable due to age.” Assuming that that statement means what it says, a refusal to promote due to age more than three years after a demotion does not revive the earlier claim. See, e.g., Downey, supra, 649 F.2d at 305-05; Goldman v. Sears, Roebuck & Co., 607 F.2d 1014 (1st Cir. 1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980); Marshall v. American Motors Corp., 475 F.Supp. 875 (E.D.Mich.1979) (“although some effects may still exist as the result of discriminatory discharges or demotions, if there is a reasonable ascertainable date on which the act occurred, that is the day on which the statute began to run”). See generally Milton v. Weinberger, 645 F.2d 1070, 1075 (D.C.Cir.1981). Any other result would run afoul of the purpose of the limitations period as enunciated by the Supreme Court in Ricks, supra, 449 U.S. at 256-57, 101 S.Ct. at 503-04: “The limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending claims arising from employment decisions" }, { "docid": "12801482", "title": "", "text": "because the 180-day period began to run upon the date of his discharge, basing its decision upon Electrical, Radio & Machine Workers Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976). In Electrical Workers, petitioner filed a grievance pursuant to a collective bargaining agreement between her union and her employer after she was terminated. The grievance proceedings were resolved against her, and she filed a charge with the EEOC. After receiving a “right to sue” letter, she filed suit under Title VII alleging that the company had discharged her because of her race. Her EEOC filing would have been timely if the statutory period began to run on the day the grievance procedures were terminated, but untimely if the period began on the day of discharge. The Supreme Court held that the period commenced on the day of discharge and that it was not tolled during the pendency of the grievance proceeding. In determining whether an EEOC complaint is timely filed, the unlawful employment practice complained of must be precisely identified. See Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431, 439 (1980). In Electrical Workers, the petitioner did not allege in her Title VII suit that the grievance proceedings themselves constituted acts of unlawful discrimination. Here, however, Poolaw alleges “[t]hat irrespective of the ruling by the Board on August 8, 1978, the Defendants . . . refused to reinstate the Plaintiff. However, a Caucasian employee was reinstated by said Department, after his favorable decision on that same day.” Rec., vol. I, at 49. Poolaw’s allegation that his post-termination treatment was discriminatory is a claim separate and distinct from his allegation of discriminatory discharge. The 180-day period within which he was required to file his reinstatement claim began to run at the time that alleged violation actually occurred. See Delaware State College, 449 U.S. at 259, 101 S.Ct. at 504-5, 66 L.Ed.2d at 439-40; United Air Lines, Inc. v. Evans, 431 U.S. 553, 558-59, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). That period necessarily" }, { "docid": "23524442", "title": "", "text": "do not continue into the present for the purposes of the “continuing violation” doctrine. As the Supreme Court has repeatedly advised us, our focus in determining whether an alleged civil rights violation is “continuing” is upon the issue whether a present violation still exists, not upon the present effect of a past employment decision. See Delaware State College v. Ricks, - U.S. -, -, 101 S.Ct. 498, 504, 66 L.Ed.2d 431, 440 (1980); United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). Absent special circumstances, a single act by an employer adverse to an employee’s interests, such as a discharge, layoff, or failure to transfer or promote, begins the running of the statute of limitations and the natural effects of the allegedly discriminatory act are not regarded as “continuing.” See, e. g., Nuss v. Pan Am. World Airways, Inc., 634 F.2d 1234 (9th Cir. 1980); Collins v. United Air Lines, Inc., 514 F.2d 594 (9th Cir. 1975); Griffin v. Pacific Maritime Association, 478 F.2d 1118 (9th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 69, 38 L.Ed.2d 109 (1973); Fowler v. Birmingham News Co., 608 F.2d 1055 (5th Cir. 1979). We see no special circumstances justifying a departure from the rule in this instance. While the adverse job references obviously would not have occurred but for London’s termination, they are not the sort of consequences which mutually and inevitably flow from a termination. They represent a separate form of alleged employment discrimination whose consequences would be different from those suffered as a result of a simple discharge. We hold that London’s claim of discriminatory discharge is time-barred. Turning to the question of whether London’s allegations of post-discharge conduct are cognizable, we observe that we now deal more with an issue of substantive law under § 1981 than with a purely procedural matter of statutes of limitations. As the parties have framed the issue on appeal, we must determine whether the allegations of London’s complaint state a violation of § 1981. We heed the admonition of the United States Supreme Court that a" }, { "docid": "22248617", "title": "", "text": "Civil Rights Act of 1991, § 112, Delaware State Coll. v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), and United Air Lines, Inc. v. Evans, 431 U.S. 553, 560, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the court found the continuing violations doctrine inapplicable because Cardenas described his pay checks as “consequences” of his pay grade and did not allege the AOC’s pay-grade structure was facially discriminatory. We believe that is too narrow a reading of the facts and the law. In Evans, the discrimination, which was forcing plaintiff to resign when she married, occurred outside the statutory period. Although she was rehired within the statutory period, her seniority was calculated from the date of her re-hire. The Supreme Court rejected plaintiffs argument that this application of the seniority system constituted a continuing violation because it gave present effect to the employer’s past discriminatory act by disregarding the seniority she had accrued before her forced resignation. The Court held that no present violation existed because the seniority system, its adoption, and its operation were nondiscriminatory. See Evans, 431 U.S. at 557-60, 97 S.Ct. 1885. In Ricks, the employer College denied the plaintiff professor tenure and gave him a “terminal” one-year contract pursuant to College policy. The tenure denial was outside the statutory period, but plaintiffs final day of employment was not, and he argued that his discharge was a continuing violation. The Court disagreed, finding that it was “a delayed, but inevitable, consequence of the denial of tenure. In order for the limitations periods to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure.” Ricks, 449 U.S. at 257-58, 101 S.Ct. 498. The Court cited Evans for the proposition that we look not for continuing effects but for present acts of discrimination. Id. In Lorance, the plaintiffs were demoted under a facially neutral seniority system, operated in a non-discriminatory manner but allegedly adopted" }, { "docid": "6579410", "title": "", "text": "of the ADEA that began when Dresser refused to train them and continued until they were laid off or refused promotion. “ ‘To succeed under a continuing violation theory, [the plaintiffs] must demonstrate that the acts of alleged discrimination are part of an ongoing pattern of discrimination and that at least one of the alleged discrete acts of discrimination occurred within the relevant limitations period.’ ” Davidson, 953 F.2d at 1060 (quoting Young v. Will County Dep’t of Public Aid, 882 F.2d 290, 292 (7th Cir. 1989)); Stewart v. CPC Intern., Inc., 679 F.2d 117, 121 (7th Cir.1982) (“At least one discriminatory act must have occurred within the charge-filing period.”). This they failed to do. The plaintiffs do not allege any discrete acts of discrimination other than the refusal to train. As we have already explained, the layoffs (and failure to promote) are only consequences of Dresser’s earlier refusal to retrain and not independent discriminatory acts. The plaintiffs do not allege, nor does the record reveal, any discrete acts of discrimination between the February 1986 refusal to train and the layoffs in February 1987. “Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.” Ricks, 449 U.S. at 257, 101 S.Ct. at 504 (citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977)). This case is indistinguishable from the many cases that have found allegations of a discriminatory act leading, some time later, to termination of employment insufficient to establish a continuing violation. See, e.g., Ricks, 449 U.S. at 256-58, 101 S.Ct. at 503-04 (limitations period began to run when professor informed that he was denied tenure, not when his employment was terminated one year later); Davidson v. Indiana-American Water Works, 953 F.2d 1058 (7th Cir.1992) (limitations period began to run when employee was transferred to another department, not when she was “constructively discharged” four months later); Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991) (limitations period" } ]

[ { "docid": "22064729", "title": "", "text": "event here. See id. § 2244(d)(1)(A). Fisher’s judgment became final in 1993, prior to AEDPA’s effective date. Retroactively applying AEDPA would time-bar his petition as of AEDPA’s 1996 effective date. In accord with AEDPA’s language, and to prevent the apparent inequity of such a technical result, we have allowed a prisoner whose conviction became final before AEDPA’s effective date a reasonable length of time — a grace period — during which to file his petition. Drawing on § 2244(d)(1), we have decided that one year presumptively constitutes a reasonable time. See Flanagan, 154 F.3d at 200; Flores, 135 F.3d at 1006. This would make Fisher’s petition timely if filed on or before April 24,1997. As the district court recognized, however, limitations should be tolled pursuant to § 2244(d)(2) during the time that properly filed state post-conviction or other collateral review proceedings are pending. The time from when Fisher properly filed his state habeas application until when it was denied does not count against the limitation period. See § 2244(d)(2). Fisher filed his state habeas application on April 22, 1997, two days before the initial one-year statute of limitations was to expire. The state courts denied relief, thus terminating the pending application, on August 27, 1997. Adding to that date the two days within the limitation period remaining before the state application was filed, Fisher needed to file his federal petition by August 29, 1997, but he did so on September 15,1997. III. Fisher argues that the district court should have equitably tolled the limitation period. In Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), we held that AED-PA’s filing provision is not jurisdictional but, instead, is a statute of limitations that, like all limitation statutes, could be equitably tolled. Id.; see also Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 847, 142 L.Ed.2d 701 (1999). The district court declined to invoke equitable tolling. Such a decision is left to the district court’s discretion; we review, therefore, only for abuse of discretion. See Barrs v. Sullivan, 906 F.2d 120, 122 (5th Cir.1990)." } ]

[ { "docid": "2796133", "title": "", "text": ". We note that in Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996), the Supreme Court vacated a decision of this Court which dismissed a first habeas petition for \"special ad hoc 'equitable' reasons not encompassed within the framework of Rule 9,\" in particular, that petitioner had waited almost six years, and until the last minute, to file a federal habeas petition. Id. at 322, 116 S.Ct. at 1298. The Supreme Court held that such a petition is governed by the Habeas Corpus Rules, not by generalized equitable considerations. See id. at 332, 116 S.Ct. at 1303. Thus, it is clear that Rule 9, rather than any equitable doctrine, provided the only form of \"time limitation” for first federal habeas petitions prior to the enactment of AEDPA. . This is consistent with what our sister circuits have held. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (stating that the limitation period for filing habeas petitions may be equitable tolled in extraordinary circumstances); Miller v. New Jersey Dep't of Corrections, 145 F.3d 616, 618 (3d Cir.1998) (holding that § 2244(d)’s limitation period can be equitably tolled in extraordinary circumstances); Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir.2000) (concluding that § 2244(d) is subject to equitable tolling, at least in principle); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998) (holding that § 2244(d)’s limitation period can be equitably tolled in \"rare and exceptional circumstances”), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Calderon v. United States Dist. Ct., 163 F.3d 530, 541 (9th Cir.1998) (en banc) (\"[Section] 2244(d)(1) can be tolled if extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.”) (internal quotation marks omitted), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.) (\"It must be remembered that § 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling.”), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). . See Lucidore v. New" }, { "docid": "22546063", "title": "", "text": "Mr. Gibson filed a timely appeal, the limitations period did not resume running until the state appellate court affirmed the denial of post-conviction relief on June 25, 1997, leaving Mr. Gibson 185 days to file his federal habeas petition. Mr. Gibson waited, however, for almost one year, filing his federal habeas petition on May 20, 1998. Hence, Mr. Gibson’s federal habeas petition is clearly time barred under AED-PA’s statute of limitations, 28 U.S.C. § 2244(d)(1). D. Equitable Tolling Mr. Gibson also argues that the limitations period should be equitably tolled because he was unable to secure a copy of AEDPA and because the state court concluded that his failure to appeal the denial of post-conviction relief within the statutory time limit was not his fault. We will address Mr. Gibson’s first argument regarding his inability to obtain a copy of AEDPA but will not address his second argument regarding the state court’s decision because he did not present it to the district court. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir.1999), cert. denied, 528 U.S. 1084, 120 S.Ct. 808, 145 L.Ed.2d 681 (2000) (refusing to reach petitioner’s equitable tolling argument because he did not raise it in the district court). AEDPA’s one-year statute of limitations is subject to equitable tolling but only “in rare and exceptional circumstances.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), cert, denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). Equitable tolling would be appropriate, for example, when a prisoner is actually innocent, Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert, denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998), when an adversary’s conduct — or other uncontrollable circumstances — -prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period, Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Simple excusable neglect is not sufficient. Id. at 96, 111 S.Ct. 453. Moreover, a petitioner must diligently pursue his federal habeas claims; a claim of insufficient access" }, { "docid": "2380581", "title": "", "text": "after that date in which to file for § 2254 relief. Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir.1998); see United States v. Flores, 135 F.3d 1000, 1004-06 (5th Cir.1998) (§ 2255 case), cert. denied, 525 U.S. 1091, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999). Because Grooms’s conviction became final prior to the effective date of the AEDPA, he had at least until April 24, 1997, to file his § 2254 application. In Fields v. Johnson, 159 F.3d 914, 916 (5th Cir.1998), this court held that the § 2244(d)(2) tolling provision applies to the one-year limitations period. Noting that § 2244(d)(2) provides that the limitation period applies to periods during which a “State post-conviction proceeding or other collateral review ” is pending, Grooms contends that the limitation period should tolled for the number of days during which his first federal habeas petition was pending during the year following April 24, 1996. Grooms argues that the quoted phrase should be read in the disjunctive and that, accordingly, his first federal ha-beas petition constituted “other collateral review” within the meaning of the statute. Recently, in Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999), this court held that “a petition for writ of certiorari to the Supreme Court is not an application for ‘State’ review that would toll the limitations period.” Accordingly, the period is not tolled during the ninety-day period within which a state habeas petitioner may file a petition for writ of certiorari with the Supreme Court. Id. In reaching this conclusion, the court adopted the reasoning of a Tenth Circuit case in which the court concluded that the word “State” in the phrase “State post-conviction proceeding or other collateral review” modifies both the phrase “post-conviction review” and the phrase “other collateral review.” Ott, 192 F.3d 510, 513 n. 10 (citing Rhine v. Boone, 182 F.3d 1153, 1156 (10th Cir.1999)). Ott is controlling in this case. Grooms argues that he could not pursue state remedies during the pen-dency of his first federal habeas proceeding. This argument raises the question whether the limitations period was equitably tolled. See Davis v." }, { "docid": "22176409", "title": "", "text": "Government moved to dismiss the petition on the ground that it was untimely under § 2255’s period of limitations. A magistrate judge concluded, as this circuit later did, that § 2255’s period of limitations should be construed to provide those convicted before April 24, 1996 (the effective date of the amendment introducing the period of limitations) a full year after that date to file motions under § 2255. See Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir.1998). The district court agreed and dismissed the motion. Sandvik contends in this appeal that § 2255’s statute of limitations may be equitably tolled. He argues, moreover, that equitable tolling is justified in his case because the only reason the motion was late was his lawyer’s decision, only five days before the statute ran out, to send the motion from Atlanta to Miami by ordinary mail. We review the district court’s dismissal of Sandvik’s motion de novo because this issue is solely one of law. See United States v. Hooshmand, 931 F.2d 725, 737 (11th Cir.1991). 2. Discussion To our knowledge, no court of appeals has held whether § 2255 permits equitable tolling on grounds apart from those specified in the statute. This field is not completely unploughed, however: A consensus is forming that the similar period of limitations found in 28 U.S.C. § 2244, which governs 28 U.S.C. § 2254 petitions, does permit equitable tolling. See Calderon v. United States Dist. Ct., 163 F.3d 530, 541 (9th Cir.1998) (en banc); Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.1998), cert. denied, — U.S.-, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, — U.S.-, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). These opinions all properly examine the language and intent of the statute itself to determine whether equitable tolling is available, as the Supreme Court has instructed us to do. See United States v. Beggerly, 524 U.S. 38,-, 118 S.Ct. 1862, 1868, 141 L.Ed.2d 32 (1998). Their reasons," }, { "docid": "2796134", "title": "", "text": "Corrections, 145 F.3d 616, 618 (3d Cir.1998) (holding that § 2244(d)’s limitation period can be equitably tolled in extraordinary circumstances); Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir.2000) (concluding that § 2244(d) is subject to equitable tolling, at least in principle); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998) (holding that § 2244(d)’s limitation period can be equitably tolled in \"rare and exceptional circumstances”), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Calderon v. United States Dist. Ct., 163 F.3d 530, 541 (9th Cir.1998) (en banc) (\"[Section] 2244(d)(1) can be tolled if extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.”) (internal quotation marks omitted), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.) (\"It must be remembered that § 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling.”), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). . See Lucidore v. New York State Division .of Parole, 209 F.3d 107, 113 (2d Cir.2000) (rejecting facial challenge to AEDPA’s statute of limitation because it leaves petitioners with some reasonable opportunity to have their claims heard on the merits and, therefore, \"the limitations period does not render the habeas remedy 'inadequate or ineffective to test the legality of detention,’ and therefore does not per se constitute an unconstitutional suspension of the writ.”), petition for cert. filed, 69 U.S.L.W. 3086 (Jul. 5, 2000); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.) (holding that, where petitioner does not contend he is actually innocent, the limitation period does not render the habeas remedy inadequate and ineffective), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.2000) (per curiam) (\"The 1-year limitations period of the AEDPA does not violate the Suspension Clause unless it renders the habe-as remedy inadequate or ineffective to test the legality of detention. Molo [who failed to show factual innocence] has not shown how the limitations period" }, { "docid": "22197417", "title": "", "text": "state habeas applications. Instead, when a prisoner asserts that his ability to file a federal habeas petition has been affected by a state proceeding, we will examine the facts to determine whether the prisoner is entitled to equitable tolling under § 2244(d)(1). In this case, Coleman’s pro se brief is entitled to liberal construction. Humphrey v. Cain, 120 F.3d 526, 530 n. 2 (5th Cir.1997). We may therefore liberally construe Coleman’s Houston v. Lack argument to be a contention that his submission for mailing of his application attacking the conviction in the February case on September 4, 1996, entitles him to equitable toling of the limitation period of § 2244(d)(1). The one-year limitations provision “does not operate as a jurisdictional bar and can, in appropriate exceptional circumstances, be equitably tolled.” Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). The district court in Davis had granted a death row habeas petitioner several extensions between February 1997 and May 1998 to file his § 2254 petition, but then denied the petition as untimely. See id. at 808. Without formulating specific requirements for determining whether equitable tolling principles should apply in the § 2244(d) context, this court concluded that the petitioner in his COA application had made a credible showing that the district court erred in dismissing his petition as untimely. Id. at 812. Davis thus did not involve circumstances like those in Coleman’s case, in which Coleman essentially contends that delays in the processing of his state court postconviction application prevented him from complying with the one-year limitations period. “The doctrine of equitable tolling preserves a plaintiffs claims when strict application of the statute of limitations would be inequitable.” Davis, 158 F.3d at 810 (citation and internal quotation marks omitted). “Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.” Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir.1996). A “ ‘garden variety claim of excusable neglect’ ”" }, { "docid": "2380582", "title": "", "text": "review” within the meaning of the statute. Recently, in Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999), this court held that “a petition for writ of certiorari to the Supreme Court is not an application for ‘State’ review that would toll the limitations period.” Accordingly, the period is not tolled during the ninety-day period within which a state habeas petitioner may file a petition for writ of certiorari with the Supreme Court. Id. In reaching this conclusion, the court adopted the reasoning of a Tenth Circuit case in which the court concluded that the word “State” in the phrase “State post-conviction proceeding or other collateral review” modifies both the phrase “post-conviction review” and the phrase “other collateral review.” Ott, 192 F.3d 510, 513 n. 10 (citing Rhine v. Boone, 182 F.3d 1153, 1156 (10th Cir.1999)). Ott is controlling in this case. Grooms argues that he could not pursue state remedies during the pen-dency of his first federal habeas proceeding. This argument raises the question whether the limitations period was equitably tolled. See Davis v. Johnson, 158 F.3d 806, 811-12 (5th Cir.1998) (holding that the one-year limitations period is subject to equitable tolling under appropriate exceptional circumstances); cert. denied, — U.S. -, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). “Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.” Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.1999) (internal quotation marks omitted). More than one year expired after the first federal habeas petition was dismissed for failure to exhaust state remedies before Grooms filed his second federal habeas application. Grooms did not attempt to exhaust his state remedies during that period. Exceptional circumstances meriting equitable tolling are not present in this case. IT IS ORDERED that the respondent’s motion for leave to supplement the record with documents from Grooms’s first federal habeas proceeding is GRANTED; IT IS FURTHER ORDERED that the judgment of the district court dismissing Grooms’s second federal habeas application as time-barred is AFFIRMED." }, { "docid": "22474882", "title": "", "text": "filings, addressed equitable tolling. We note that the court did not have the benefit of our opinion in Davis v. Johnson, 158 F.3d 806 (5th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). In Davis, we held, as a matter of first impression, that the AEDPA one-year limitations period was a statute of limitations, not a bar to federal jurisdiction. See id. at 807. As a statute of limitations, it could be equitably tolled, albeit only in “rare and exceptional circumstances.” Id. at 811; see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999) (asserting that courts must “examine each case on its facts to determine whether it presents sufficiently ‘rare and exceptional circumstances’ to justify equitable tolling” (quoting Davis, 158 F.3d at 811)). We have since provided additional insight into the types of circumstances that may be seen as rare and exceptional. In Coleman v. Johnson, 184 F.3d 398 (5th Cir.1999), for example, we stated that “ ‘[ejquitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.’ ” Id. at 402 (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir.1996)). It is undisputed that, if equitable tolling for at least twenty-one days of Felder’s one-year grace period is unwarranted, Felder’s petition must be dismissed as untimely. In light of Davis and our other jurisprudence, the circumstances enumerated by the district court in granting a COA are clearly insufficient to warrant equitable tolling. We have held that a petitioner’s incarceration prior to AED-PA’s passage does not present an extraordinary circumstance warranting equitable tolling. See Fisher, 174 F.3d at 714 (noting that AEDPA’s one-year grace period affected hundreds of prisoners, none of whom learned of it on its effective date). Likewise, proceeding pro se is not a “rare and exceptional” circumstance because it is typical of those bringing a § 2254 claim. Cf. United States v. Flores, 981 F.2d 231, 236 (5th Cir.1993) (holding pro se status, illiteracy, deafness, and lack of legal" }, { "docid": "23311950", "title": "", "text": "However, we have recognized that the one-year period of limitations in § 2244(d)(1) of the AEDPA for filing the analogous § 2254 petition is not a jurisdictional bar and can be equitably tolled. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998). Although Davis involved the limitations period in § 2244(d)(1), applicable to § 2254 petitions, not § 2255 motions, we have recognized that the limitations provisions for §§ 2254 and 2255 are “nearly identical.” Flores, 135 F.3d at 1002 n. 7. We further explained that because of the similarity of the actions brought pursuant to §§ 2254 and 2255, the federal courts have read them in pari materia as long as the context did not render it improper. Id. Additionally, other circuits have held that the statute of limitations in § 2255 is subject to equitable tolling. See e.g., Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999). As Flores instructs, we follow Davis’s interpretation of the limitations provision for § 2254 and likewise conclude that the statute of limitations in § 2255 may be equitably tolled in “rare and exceptional circumstances.” Davis, 158 F.3d at 811. “The doctrine of equitable tolling preserves a plaintiffs claims when strict application of the statute of limitations would be inequitable.” Davis, 158 F.3d at 810 (citation and internal quotation marks omitted). “ ‘Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.’ ” Coleman, 184 F.3d at 402 (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir.1996)). We review a district court’s decision with respect to equitable tolling for abuse of discretion. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999). Nonetheless, “[w]e must be cautious not to apply the statute of limitations too harshly.” Id. We are mindful that dismissing a first § 2255 motion or habeas petition is a “particularly serious matter.” Id. (citation and internal quotation marks omitted). To apply the doctrine of equitable tolling, we look to the facts and circumstances of each case. Id." }, { "docid": "22342490", "title": "", "text": "only is this interpretation uniformly followed in other circuits, but it also comports with the goal of the AEDPA to prevent undue delays in federal habeas review. If the one-year period began anew when the state court denied collateral relief, then state prisoners could extend or manipulate the deadline for federal habeas review by filing additional petitions in state court. The district court therefore correctly dismissed Smith’s habeas petition. II. Equitable tolling Smith argues in the alternative that we should exercise our equitable powers to excuse his delay in filing his federal habeas petition. The state responds that even assuming equitable tolling applies, Smith did not meet the high threshold for obtaining this relief because he did not act diligently to pursue his ineffective assistance of appellate counsel claim in either state or federal court. We have not determined whether equitable tolling applies to the one-year statute of limitations contained in Section 2244(d) or the grace period announced in Ross v. Artuz. However, other circuits considering this issue uniformly have held that the one-year period is a statute of limitations rather than a jurisdictional bar so that courts may equitably toll the period. See Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir.1998) (en banc), cert. denied, 525 U.S. 891, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), cert. denied, 525 U.S. 891, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). We join our sister circuits and also adopt this rule. Equitable tolling applies only in the “rare and exceptional circumstance[ ].” Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied, — U.S.-, 120 S.Ct. 504, 145 L.Ed.2d 389 (1999). In order to equitably toll the one-year period of limitations, Smith must show that extraordinary circumstances prevented him from filing his petition on time. See Johnson v. Nyack Hosp., 86 F.3d 8," }, { "docid": "22342491", "title": "", "text": "is a statute of limitations rather than a jurisdictional bar so that courts may equitably toll the period. See Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir.1998) (en banc), cert. denied, 525 U.S. 891, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), cert. denied, 525 U.S. 891, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). We join our sister circuits and also adopt this rule. Equitable tolling applies only in the “rare and exceptional circumstance[ ].” Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied, — U.S.-, 120 S.Ct. 504, 145 L.Ed.2d 389 (1999). In order to equitably toll the one-year period of limitations, Smith must show that extraordinary circumstances prevented him from filing his petition on time. See Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir.1996) (noting that this court has applied equitable tolling doctrine “ ‘as a matter of fairness’ where a plaintiff has been ‘prevented in some extraordinary way from exercising his rights ....’”) (citation omitted). In addition, the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll. See id. Smith claims that he is entitled to equitable relief because (1) he could not file his federal petition until he exhausted his state remedies; and (2) he diligently filed his state coram nobis petition and then filed his federal habeas petition only 87 days after the state denied collateral relief. Petitioner-appellant raised both of these arguments in the district court. Smith’s case does not present extraordinary or exceptional circumstances warranting equitable tolling. Smith’s delays in seeking collateral review of his convic tion do not show reasonable diligence. In addition, the tolling provision of Section 2244(d)(2) already accommodates the exhaustion requirements that prisoners face, so the mere fact that Smith exhausted his claims in the coram nobis petition does" }, { "docid": "22466339", "title": "", "text": "and eviden-tiary hearings b.ut not to the one-year limitations period, that does not give rise to the negative implication that the absence of an exception was intended. By analogy, we note that despite the fact that the statute fails to mention tolling, the majority of the courts of appeals which have addressed the issue, including this one, have held that the 'doctrine of equitable tolling applies to the' one-year limitations period. See, e.g., Dunlap, 250 F.8d at 1007; Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir.2000); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir.1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998); Calderon v. United States Dist. Court, 128 F.3d 1283, 1289 (9th Cir.1997), cert. denied, 523 U.S. 1061, 118 S.Ct. 1389, 140 L.Ed.2d 648 (1998). In Dunlap, we held that the inclusion of the four sub-parts detailing the operation of the limitations period did not imply that Congress intended to preclude equitable tolling of the limitations period. See also Harris, 209 F.3d at 329 (holding that the “inclusion of [the four] statutory provisions does not give rise to the inference that the application of the limitation period must otherwise be absolute”). Moreover, though Congress included a thirty-day tolling period in a parallel limitations provision in AEDPA governing capital prisoners represented by competent counsel in state post-conviction proceedings, 28 U.S.C. § 2263(b)(3)(B), the inclusion of a provision in that section does not imply that the absence of a similar one in § 2244(d)(1) was intentional. Calderon, 128 F.3d at 1289. The Ninth Circuit concluded that the inclusion of the tolling provision in § 2263(b)(3)(B) signaled Congress’s intent to limit tolling to thirty days in that one specific circumstance, but not “to upset the normal default rule allowing longer tolling periods” for other habeas situations. Id. In interpreting a statute, we presume" }, { "docid": "1513163", "title": "", "text": ". Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citing Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). . Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (per curiam) (quoting Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996)), abrogated on other grounds by Causey v. Cain, 450 F.3d 601, 605 (5th Cir. 2006). . Compare Maples v. Thomas, - U.S. -, 132 S.Ct. 912, 923-24, 181 L.Ed.2d 807 (2012), with Holland, 560 U.S. at 651-52, 130 S.Ct. 2549 (2010). . See Holland, 560 U.S. at 651-52, 130 S.Ct. 2549. . See Maples, 132 S.Ct. at 923-24. . See Holland, 560 U.S. at 649, 130 S.Ct. 2549 (emphasis added) (internal quotation marks omitted); see also Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (\"The word ‘prevent’ requires the petitioner to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances.”). . See United States v. Petty, 530 F.3d 361, 364-66 (5th Cir. 2008) (per curiam). . Id. at 363. . Id. . Id. at 365. . Id. at 366. . Flores v. Quarterman, 467 F.3d 484, 486-87 (5th Cir. 2006) (per curiam) (internal quotation marks omitted) (denying equitable tolling even though state of the law was unclear when habeas petitioner missed deadline); see also Fieiro v. Cockrell, 294 F.3d 674, 683 (5th Cir. 2002) (\"Although the application and interpretation of the AEDPA statute of limitations was somewhat unsettled during this period, we think that such uncertainty should have militated against taking an unnecessary risk by waiting to file a ... habeas petition.”). . Fierro, 294 F.3d at 682-83 & n. 14. . Petty, 530 F.3d at 365 (internal quotation marks and citation omitted)." }, { "docid": "23107646", "title": "", "text": "Nevertheless, even assuming arguen-do that an untimely request for allowance of appeal is considered not \"properly filed,” that does not settle the issue of whether a previously filed application (or appeal) was \"pending” during the time a petitioner could have sought review of the appellate court’s decision. . Although the matter before the Court in Kapral technically required only the interpretation of what is a \"final judgment” for purposes of § 2255, we addressed the meaning of \"final judgment” as it pertains to § 2244(d)(1). See Kapral, 166 F.3d at 574, 575. It has become our custom when wading through AEDPA that when we interpret a provision which applies to federal prisoners, we will also consider a parallel provision which applies to state prisoners, and vice versa. See id. at 574 n. 6; Burns, 134 F.3d at 113. Since Kapral, we have applied the definition of \"final judgment” announced in Kapral to § 2244(d)(1). See e.g. Morris, 187 F.3d at 337 n. 1. .We need not delve into the issue whether \"pending” includes the time to file a petition for a writ of certiorari in the United States Supreme Court because that question is not presented by this appeal. Other courts have addressed this issue and found that the time does not toll. See Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.), cert. denied, - U.S. -, 120 S.Ct. 808, 145 L.Ed.2d 681 (2000). Their primary reason is that § 2244(d)(2) provides that the limitation period is tolled while a petitioner's State post-conviction remedies are pending and a certio-rari petition is not part of the state post-conviction process. See Ott, 192 F.3d at 512. . Although dicta in some opinions appear to support the government’s view, those cases are readily distinguishable. See e.g. Barnett, 167 F.3d at 1322; Dreher v. Hargett, 172 F.3d 62 (10th Cir.1999) (table); Hoggro v. Boone, 150 F.3d 1223, 1227 n. 4 (10th Cir.1998). In Barnett, which was cited supra for the proposition that the time between the denial of a state PCRA application and the" }, { "docid": "22176410", "title": "", "text": "Discussion To our knowledge, no court of appeals has held whether § 2255 permits equitable tolling on grounds apart from those specified in the statute. This field is not completely unploughed, however: A consensus is forming that the similar period of limitations found in 28 U.S.C. § 2244, which governs 28 U.S.C. § 2254 petitions, does permit equitable tolling. See Calderon v. United States Dist. Ct., 163 F.3d 530, 541 (9th Cir.1998) (en banc); Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.1998), cert. denied, — U.S.-, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, — U.S.-, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998). These opinions all properly examine the language and intent of the statute itself to determine whether equitable tolling is available, as the Supreme Court has instructed us to do. See United States v. Beggerly, 524 U.S. 38,-, 118 S.Ct. 1862, 1868, 141 L.Ed.2d 32 (1998). Their reasons, moreover, are sound. There is no obvious cause, and the parties offer none, why this interpretation of § 2244’s statute of limitations should not be equally valid for § 2255’s. A presumption that a statute of limitations may be equitably tolled applies with equal force to both statutes. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990). And like § 2244(d), there is every indication that § 2255’s deadline is a garden-variety statute of limitations, and not a jurisdictional bar that would escape equitable tolling. First, like § 2244’s, § 2255’s time limit is called a “period of limitations,” and thus does not imply a jurisdictional boundary. Cf. Davis, 158 F.3d at 811; Calderon v. United States Dist. Ct., 128 F.3d 1283, 1288 (9th Cir.1997). Section 2255’s limit shares a legislative history with § 2244, moreover, that makes clear that both statutes were intended to be ordinary statutes of limitation and not jurisdictional bars. Cf. id. Furthermore, § 2255’s period of limitations, like § 2244’s," }, { "docid": "23076681", "title": "", "text": "second state habeas application. The first state habeas action was filed in 1989. That habeas petition, which raised different issues from the present petition, is not in the record and is not relevant to the disposition of this case. . Although § 2244(d)(1) lists three other alternative events from which the limitations period would begin, Ott agrees that the date of final judgment in § 2244(d)(1)(A) is the only applicable provision here. . Flanagan v. Johnson, 154 F.3d 196 (5th Cir.1998). . On appeal, Ott abandons the argument made in the district court that the three-day allowance for acts conducted by mail, see Fed.R.Civ.P. 6(e), extended the limitations period. . We note that although Ott has briefed six issues concerning the suspension, equal protection, and due process clauses of the constitution, these issues were not included in the COA granted by the district court. Even though Ott has briefed the issues, he has not explicitly requested that we broaden the district court’s COA. Without an express request to broaden the COA, one which we approved, we will not consider issues on which a COA was denied. See United States v. Kimler, 150 F.3d 429 (5th Cir.1998). . See United States v. Fitch, 137 F.3d 277 (5th Cir.1998). . See Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.1999). See also United States v. DeTella, 6 F.Supp.2d 780 (N.D.Ill.1998) (holding that time for seeking certiorari with Supreme Court does not toll limitations period under § 2244(d)(2)). . Hohn v. United States, 524 U.S. 236, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998). . See Rhine, 182 F.3d at 1156 (holding that \"State” modifies both the phrase \"post-conviction review” and the phrase \"other collateral review\"). . See id. . Davis v. Johnson, 158 F.3d 806 (5th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). . Fisher v. Johnson, 174 F.3d 710 (5th Cir.1999). . Davis, 158 F.3d at 811. . Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996))." }, { "docid": "23191183", "title": "", "text": "where no petition for writ of certiora-ri has been filed, there was neither a “properly filed” nor a “pending” application for other collateral review within the meaning of 28 U.S.C. § 2244(d)(2). Gutierrez v. Schomig, 233 F.3d 490 (7th Cir.2000); see also Stokes v. Dist. Att’y of Philadelphia, 247 F.3d 539 (3d Cir.2001) (citing Gutierrez as alternate ground for its holding, but also relying on reasoning more akin to Rhine ). Other circuits to consider similar fact situations have rejected tolling arguments on the same reasoning adopted by the Tenth Circuit in Rhine v. Boone, 182 F.3d 1153, that proceedings before the United States Supreme Court seeking review of a state habeas corpus application do not toll the one-year limitations period. See Stokes, supra; Ott v. Johnson, 192 F.3d 510 (5th Cir.1999); Isham v. Randle, 226 F.3d 691 (6th Cir.2000); Snow v. Ault, 238 F.3d 1033 (8th Cir.2001); Bunney v. Mitchell, 241 F.3d 1151, 1156 (9th Cir.2001); and Coates v. Byrd, 211 F.3d 1225, 1226-27 (11th Cir.2000). And the foregoing list of cases is not necessarily exclusive. All of the courts of appeal considering the question have come to a like conclusion. Following the denial of relief in the state courts in state habeas proceedings, neither the time for filing a petition for certiorari in the United States Supreme Court, nor the time a petition for certiorari is considered by the United States Supreme Court, is tolled under 28 U.S.C. § 2244(d)(2) from the one-year statute of limitations under § 2244(d)(1). In our case, the petition for certiorari to review the adverse habeas decision of the South Carolina Supreme Court was properly filed on March 19, 1998 and was pending in the United States Supreme Court from then until it was denied on May 26, 1998. We now hold that the period from March 19, 1998 until May 26, 1998 does not toll the statute of limitations under § 2244(d)(2). We come to this conclusion for the following reasons. In a case on only slightly different facts, the Supreme Court has recently construed the language of 28 U.S.C. § 2244(d)(2)." }, { "docid": "22466338", "title": "", "text": "habeas corpus] by any of the courts of the United States[ ] must be given by written law,” and the “judgments about the proper scope of the writ are normally for Congress to make.” Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (internal citations omitted). The Eighth Circuit has noted correctly that § 2244(d)(1) “says nothing about actual innocence, even though other parts of AEDPA, enacted at the same time, do refer to this doctrine.” Flanders, 299 F.3d at 977; compare 28 U.S.C. § 2244(d)(1) with 28 U.S.C. § 2244(b)(2)(B)(ii) and 28 U.S.C. § 2254(e)(2)(B). The court held that “[i]t is not our place to engraft an additional judge-made exception onto congressional language that is clear on its face.” Id. Even the Flanders court realized, however, that such a reading of the statute implies too much, and that court allowed for an exception in certain limited circumstances. Id. at 978. While it is true that Congress included an actual innocence exception to the procedural bars on successive habeas petitions and eviden-tiary hearings b.ut not to the one-year limitations period, that does not give rise to the negative implication that the absence of an exception was intended. By analogy, we note that despite the fact that the statute fails to mention tolling, the majority of the courts of appeals which have addressed the issue, including this one, have held that the 'doctrine of equitable tolling applies to the' one-year limitations period. See, e.g., Dunlap, 250 F.8d at 1007; Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir.2000); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir.1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999); Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998); Calderon v. United States Dist. Court, 128 F.3d 1283, 1289 (9th Cir.1997), cert. denied, 523 U.S. 1061, 118 S.Ct. 1389, 140 L.Ed.2d 648 (1998)." }, { "docid": "14130372", "title": "", "text": "that the time during which a state prisoner may file a petition for a writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the one year statute of limitations under 28 U.S.C. § 2244(d)(2). See Snow v. Ault, 238 F.3d 1033 (8th Cir.2001); Gutierrez v. Schomig, 233 F.3d 490 (7th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 1421, 149 L.Ed.2d 361 (2001); Isham v. Randle, 226 F.3d 691, 695 (6th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 1211, 149 L.Ed.2d 124 (2001); Coates v. Byrd, 211 F.3d 1225, 1227 (11th Cir.2000), cert. denied, - U.S. -, 121 S.Ct. 1129, 148 L.Ed.2d 995 (2001); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999), cert. denied, 529 U.S. 1099, 120 S.Ct. 1834, 146 L.Ed.2d 777 (2000); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.1999), cert. denied, 528 U.S. 1084, 120 S.Ct. 808, 145 L.Ed.2d 681 (2000). We now join these courts of appeals and conclude that Stokes’ petition was properly dismissed as time-barred. We reach this conclusion for several reasons. First, we note that the language used in section 2244(d)(1)(A) differs from that found in section 2244(d)(2). “[Ujnlike § 2244(d)(1)(A), which uses the phrase ‘became final by ... expiration of the time for seeking [direct] ... review,’ a phrase that ... takes into account certiorari proceedings, § 2244(d)(2) contains no such language.” Snow v. Ault, 238 F.3d at 1035 (citation omitted). We agree with the Court of Appeals for the Sixth Circuit: [I]t seems clear that Congress intended to exclude potential Supreme Court review as a basis for tolling the one year limitations period. See Hohn v. United States, 524 U.S. 236, 249-50, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) (observing that by including particular language in one section of an act but omitting it in another section of the same act, it is presumed that Congress intended to exclude the language). Isham v. Randle, 226 F.3d at 695. This reading of section 2244(d)(2) is consistent with the requirement that a petitioner exhaust state remedies prior to instituting" }, { "docid": "1513162", "title": "", "text": "for the time the petition was under consideration by the Supreme Court because the petition was untimely and therefore not properly filed.”). . See 562 F.3d 309, 312 n.3 (5th Cir. 2009). . Finally, the unpublished supplemental authority from the Eleventh Circuit to which Wheaten brings our attention in a letter filed pursuant to Federal Rule of Appellate Procedure 28(j) is inapposite. See Ortiz v. Sec’y, Dep’t of Corr., 621 Fed.Appx. 624 (11th Cir. 2015). Contrary to Wheaten’s assertions, the Eleventh Circuit there did not state that the inmate’s certiorari petition was untimely; it did not address that question. Id. In fact, our review of the Supreme Court’s docket for Ortiz’s direct appeal demonstrates that the certiorari petition was timely. See Ortiz v. Florida, No. 06-7488, dkt. sheet, available at http://www.supremecourt.gov/docketfiles/06-7488.htm. . See United States v. Petty, 530 F.3d 361, 365 (5th Cir. 2008) (per curiam) (\"Petty bears the burden of establishing equitable tolling is appropriate.\"). . Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (internal quotation marks omitted). . Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citing Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). . Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (per curiam) (quoting Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996)), abrogated on other grounds by Causey v. Cain, 450 F.3d 601, 605 (5th Cir. 2006). . Compare Maples v. Thomas, - U.S. -, 132 S.Ct. 912, 923-24, 181 L.Ed.2d 807 (2012), with Holland, 560 U.S. at 651-52, 130 S.Ct. 2549 (2010). . See Holland, 560 U.S. at 651-52, 130 S.Ct. 2549. . See Maples, 132 S.Ct. at 923-24. . See Holland, 560 U.S. at 649, 130 S.Ct. 2549 (emphasis added) (internal quotation marks omitted); see also Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (\"The word ‘prevent’ requires the petitioner to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable" } ]

[ { "docid": "22696894", "title": "", "text": "for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Although it has thus long been established that jeopardy may attach in a criminal trial that ends inconclusively, the precise point at which jeopardy does attach in a jury trial might have been open to argument before this Court’s decision in Downum v. United States, 372 U. S. 734. There the Court held that the Double Jeopardy Clause prevented a second prosecution of a defendant whose first trial had ended just after the jury had been sworn and before any testimony had been taken. The Court thus necessarily pinpointed the stage in a jury trial when jeopardy attaches, and the Downum case has since been understood as explicit authority for the proposition that jeopardy attaches when the jury is empaneled and sworn. See United States v. Martin Linen Supply Co., 430 U. S. 564, 569; Serfass v. United States, 420 U. S., at 388. The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury. That interest was described in Wade v. Hunter, supra, as a defendant’s “valued right to have his trial completed by a particular tribunal.” 336 U. S., at 689. It is an interest with roots deep in the historic development of trial by jury in the Anglo-American system of criminal justice. Throughout that history there ran a strong tradition that once banded together a jury should not be discharged until it had completed its solemn task of announcing a verdict. Regardless of its historic origin, however, the defendant’s “valued right to have his trial completed by a particular tribunal” is now within the protection of the constitutional guarantee against double jeopardy, since it is that “right” that lies at the foundation of the federal rule that jeopardy attaches when the jury is empaneled and sworn. United States" } ]

[ { "docid": "7583710", "title": "", "text": "1349, 51 L.Ed.2d 642]; Serfass v. United States, 420 U.S. 377, 388 [95 S.Ct. 1055, 43 L.Ed.2d 265]. The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury. That interest was described in Wade v. Hunter, supra, as a defendant’s “valued right to have his trial completed by a particular tribunal.” 336 U.S., at 689 [69 S.Ct. 834]. It is an interest with roots deep in the historic development of trial by jury in the Anglo-American system of criminal justice. Throughout that history there ran a strong tradition that once banded together a jury should not be discharged until it had completed its solemn task of announcing a verdict. Regardless of its historic origin, however, the defendant’s “valued right to have his trial completed by a particular tribunal” is now within the protection of the constitutional guarantee against double jeopardy, since it is that “right” that lies at the foundation of the federal rule that jeopardy attaches when the jury is empaneled and sworn. United States v. Martin Linen Supply Co., supra; Serfass v. United States, 420 U.S. 377 388 [95 S.Ct. 1055, 43 L.Ed.2d 265]; Illinois v. Somerville, 410 U.S. 458, 467 [93 S.Ct. 1066, 35 L.Ed.2d 425]; United States v. Jorn, 400 U.S. 478-480, 484-85 [91 S.Ct. 547] (plurality opinion). * # # * # # But the federal rule as to when jeopardy attaches in a jury trial is not only a settled part of federal constitutional law. It is a rule that both reflects and protects the defendant’s interest in retaining a chosen jury. We cannot hold that this rule, so grounded, is only at the periphery of double jeopardy concerns. Those concerns — the finality of judgments, the minimization of harassing exposure to the harrowing experience of a criminal trial, and the valued right to continue with the chosen jury — have combined to produce the federal law that in a jury trial jeopardy attaches when the jury is empaneled and sworn, (Emphasis supplied. Footnotes" }, { "docid": "23486159", "title": "", "text": "the same acts previously charged in state court. The sole witness at the federal trial was a member of the Albuquerque, New Mexico Police Department who was involved in the gathering of evidence in the state case. Padilla, 589 F.2d at 485 (Logan, J., concurring). Defendant challenged his conviction on double jeopardy grounds and the court held that the federal conviction was not barred. Id. at 484. The double jeopardy circumstances in Padilla were far more compelling than those in this case, yet the dual sovereignty doctrine controlled the case. See id. at 485 (Logan, J., concurring) (“It is hard to imagine another situation where the law permits what appears on its face to be such an apparent injustice, making a defendant answer twice for the same acts.”). Defendant’s double jeopardy claim fails for any number of independent reasons. First, jeopardy never attached in the Oklahoma state prosecution. In a jury trial, jeopardy attaches when the jury is impaneled and sworn; in a bench trial, jeopardy attaches when the first witness is sworn. Crist v. Bretz, 437 U.S. 28, 37-38, 98 S.Ct. 2156, 2161-2162, 57 L.Ed.2d 24 (1978); Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). Prior to any trial, the Oklahoma prosecution was dismissed in lieu of federal prosecution. See Liddy, 542 F.2d at 80 (state prosecution dismissed in lieu of federal prosecution). Second, although defendant claims that his constitutional and statutory right to a speedy trial has been circumvented, he offers no fact-law integration to support the claim. Sometimes things are what they appear; the lack of factual development and legal analysis on this claim strongly suggests its lack of merit. Moreover, defendant has never explained how the Oklahoma state prosecution would be barred as a result of the difficulty in extraditing him from Texas to Oklahoma. A lone cite to Tex.Crim.Pro. Ann. art. 51.13 (Vernon 1979 & 1991 Cum. Supp.) does not provide sufficient specificity, particularly in view of the many sections pertaining to extradition. We will not presume that insurmountable obstacles barred defendant’s extradition. Third, defendant has not" }, { "docid": "3139987", "title": "", "text": "28 U.S.C. § 1291 (1988) to review the denial of a motion to dismiss on double jeopardy grounds. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977) (holding pretrial orders rejecting claims of former jeopardy consti tute “final decisions” under 28 U.S.C. § 1291 by reason of the collateral order exception to finality); see also United States v. Allen, 984 F.2d 940, 941 (8th Cir.1993). However, such an order is immediately appealable only if the defendant makes a showing of a colorable double jeopardy claim. United States v. Grabinski 674 F.2d 677, 678 (8th Cir.) (en banc) (per curiam) (emphasis added), cert. denied, 459 U.S. 829, 103 S.Ct. 67, 74 L.Ed.2d 67 (1982). If the defendant has failed to state a colorable double jeopardy claim, we will dismiss the double jeopardy appeal for lack of jurisdiction. United States v. Bernard Ivory, 29 F.3d 1307, 1310 (8th Cir.1994) (citing Grabinski 674 F.2d at 680). We must determine whether the defendant has stated a colorable double jeopardy claim. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars a second prosecution for the same offense or a lesser included offense. Brown v. Ohio, 432 U.S. 161, 168-69, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977). Jeopardy attaches to a prosecution when the jury is empaneled and sworn or, in a nonjury case, when the court begins to hear evidence. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062-63, 43 L.Ed.2d 265 (1975); see also United States v. Miller, 995 F.2d 865, 868 (8th Cir.1993). “Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier ‘having jurisdiction to try the question of the guilt or innocence of the accused.’ ” Serfass v. United States, 420 U.S. 377, 391, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265 (1975) (quoting Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 806, 49 L.Ed. 114 (1904)). “Without risk of a determination of guilt, jeopardy does" }, { "docid": "23634500", "title": "", "text": "to our scheme of justice that “the same constitutional standards apply against both the State and Federal Governments.” 395 U.S. at 795, 89 S.Ct. at 2063. In his opinion below Judge Nickerson rejected the State’s contention that the difference between the federal and New York rules concerning when jeopardy attaches was merely technical or mechanical. Rather, Judge Nickerson found that “[t]he composition of a particular jury is crucial” to the defendant’s interest, and that the double jeopardy clause protects the defendant’s “valued right to have his trial completed by a particular tribunal.” Mizell v. Attorney General of the State of New York, 442 F.Supp. 868, 871-72 (E.D.N.Y.1977). We fully subscribe to the reasoning articulated in the district court and see no reason to repeat it here. In fact, after the filing of the opinion below, the Supreme Court in Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), rejected as unconstitutional the Montana rule which, like the former New York law, provided that jeopardy attaches only after a witness is sworn. The Court stated: Although it has thus long been established that jeopardy may attach in a criminal trial that ends inconclusively, the precise point at which jeopardy does attach in a jury trial might have been open to argument before this Court’s decision in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100. There the Court held that the Double Jeopardy Clause prevented a second prosecution of a defendant whose first trial had ended just after the jury had been sworn and before any testimony had been taken. The Court thus necessarily pinpointed the stage in a jury trial that jeopardy attaches, and the Downum case has since been understood as explicit authority for the proposition that jeopardy attaches when the jury is empaneled and sworn (citations and footnote omitted). 98 S.Ct. at 2160. It is evident that the Supreme Court in Crist considered that the rule which was formulated by Downum in 1963 was made applicable to the states by Benton in 1969 and was not simply a mechanical or" }, { "docid": "12549421", "title": "", "text": "court’s reliance upon decisions involving double jeopardy principles was misplaced. The basis for the court’s decision was that: “A trial begins and jeopardy attaches when the jury is sworn, not when the jury is selected.” White, 764 F.Supp. at 255 (citing United States v. Wedalowski, 572 F.2d 69 (2d Cir.1978)). This is clearly a correct statement of double jeopardy doctrine, see Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975); United States v. DiLapi, 616 F.2d 613, 614 (2d Cir.1980) (per curiam), but we do not regard that body of law as controlling the issue presented for decision in this case. The Double Jeopardy Clause protects an individual from twice being subject to the risk of a determination of guilt. Serfass, 420 U.S. at 391-92, 95 S.Ct. at 1064-65. That risk comes into play only when “a proceeding begins before a trier ‘having jurisdiction to try the question of the guilt or innocence of the accused.’ ” Id. at 391, 95 S.Ct. at 1064 (quoting Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 49 L.Ed. 114 (1904)). Accordingly, the risk associated with trial does not occur, and jeopardy does not attach, until the jury has been empaneled and sworn, and is thus competent to dispense a judgment of guilt. These considerations are inapposite to our inquiry under § 851(a)(1), which requires that we determine when the trial begins, not when the defendant’s exposure to the risk of a guilty verdict begins. Put another way, the Constitution protects against “double jeopardy,” not “double trial,” and the attachment of jeopardy does not occur at the commencement of the trial as “trial” is otherwise commonly defined. Our interpretation of § 851(a)(1) finds support in United States v. Johnson, 944 F.2d 396 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 646, 116 L.Ed.2d 663 (1991), — U.S. -, 112 S.Ct. 983, 117 L.Ed.2d 146 — U.S.-, 112 S.Ct. 2951, 119 L.Ed.2d 574 (1992), in which the Eighth Circuit held that “section 851 requires filing before jury selection begins,” id. at 407; and in" }, { "docid": "2670077", "title": "", "text": "put in jeopardy of life or limb.” U.S. Const, amend. V. The object of the double jeopardy clause is to protect a defendant who has once been convicted and punished or acquitted for a particular crime from the risk of further punishment by being tried or sentenced anew for the same offense. Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1874); United States v. Brooklier, 637 F.2d 620, 621 (9th Cir.1980), cert, denied, 450 U.S. 980, 101 S.Ct. 1514, 67 L.Ed.2d 815 (1981). The double jeopardy clause seeks to assure that the defendant will not be subject to the embarrassment, anxiety, insecurity, expense and ordeal of successive prosecutions for the same offense. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). In determining whether the prohibition against double jeopardy has been invoked, courts have found it necessary to “define a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of ‘attachment of jeopardy.’ ” Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). The question of whether jeopardy has attached must be analyzed in terms of the flexible policy considerations underlying the concept rather than hard and fast rules. United States v. Choate, 527 F.2d 748, 751 (9th Cir.1975). In this sense, trial of the issue of guilt or innocence is the essence of jeopardy. United States v. Patrick, 532 F.2d 142, 145 (9th Cir.1976). In Serfass the Supreme Court reconfirmed that “jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is ‘put to trial before the trier of facts, whether the trier be a jury or a judge’ ”. 420 U.S. at 388, 95 S.Ct. at 1062. Thus, in a non-jury trial, jeopardy attaches when the court begins to hear evidence. Id.; United States v. Choate, 527 F.2d at 751. In a jury trial, jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 36, 98 S.Ct. 2156, 2161, 57 L.Ed.2d" }, { "docid": "6555600", "title": "", "text": "any one crime. As the Supreme Court has expressed it, the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187-88 [78 S.Ct. 221, 223, 2 L.Ed.2d 199] (1957). The first inquiry for the court is whether jeopardy has attached. In the usual jüry trial, jeopardy attaches upon the impaneling and swearing of the jury. Serfass v. United States, 420 U.S. 377, 388 [95 S.Ct. 1055, 43 L.Ed.2d 265] (1975); Downum v. United States, 372 U.S. 734 [83 S.Ct. 1033, 10 L.Ed.2d 100] (1963). Having satisfied that requirement, in order for double jeopardy to apply, the general rule is that the two offenses “must be the same in law and in fact.” United States v. Pacelli, 470 F.2d 67, 72 (2d Cir. 1972), cert. denied, 410 U.S. 983 [93 S.Ct. 1501, 36 L.Ed.2d 178] (1973). It is agreed by both the parties, and is evident from the two indictments, that the underlying facts of the charges alleged in each of the indictments are the same. The Government claims, however, that the offense charged in the 1973 indictment and the offense charged in the 1976 indictment are not identical and thus do not give rise to the double jeopardy plea. A comparison of the two statutes, which are reproduced in the margin, supra, appears to substantiate this analysis. Section 472 pertains specifically only to “falsely made, forged, counterfeited, or altered obligation or other security of the United States,” while § 495, on the other hand, under distinct and separate paragraphs, prohibits the counterfeiting, uttering or presenting of “any deed, power of attorney, order, certificate, receipt, contract, or other writing” with intent to receive money from the United States Government. As the Government points out in its brief, forging a signature on a genuine United" }, { "docid": "14000928", "title": "", "text": "as follows: April 26, 1974. Indicted in two counts. May 13, 1974. Trial jury selected and sworn, but no testimony taken. May 13, 1974 (The same day) White filed a motion that he be given a psychiatric examination. May 15, 1974. Motion granted. May 23, 1974. A superseding indictment is returned, six counts, violations of the same statute as in the first indictment. The first two counts of the new indictment are the same as those alleged in the first indictment. July 30, 1974. A new jury selected and sworn. Counts five and six dismissed on a directed verdict. Defendant convicted of the first four counts. At least as to the first two counts, double jeopardy attached when the first jury was selected and sworn, Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). However, the conclusion that jeopardy has attached only begins, rather than ends, the inquiry as to whether a retrial is barred. Serfass at 390, 95 S.Ct. 1055; Somerville at 467, 93 S.Ct. 1066; Smith v. Mississippi, 5 Cir. 1973, 478 F.2d 88, 93. The courts have often noted, that virtually all double jeopardy cases turn on their particular facts and thus escape categorical classification. See, e. g., Somerville at 464, 93 S.Ct. 1066; Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); United States v. Kin Ping Cheung, 5 Cir. 1973, 485 F.2d 689, 690. The broad standards which do exist were first articulated in United States v. Perez, 22 U.S. 579 (9 Wheat.), 6 L.Ed. 165 (1824). It was there stated, as so often thereafter repeated, that a jury may be discharged when required by manifest necessity or to avoid defeating the ends of public justice. Our review of this record leads to the inescapable conclusion that the only possibility of a defense, however faint, was that Mr. White lacked the requisite mental capacity at the time he" }, { "docid": "9597406", "title": "", "text": "bound by the sentence suggested in the plea-bargain, the district judge allowed Baggett to withdraw his plea and set the matter for trial. DISCUSSION The sole issue raised on appeal is whether the district court erred in denying defendant’s motion to dismiss on double jeopardy grounds. We review this question de novo. United States v. Benefield, 874 F.2d 1503, 1505 (11th Cir.1989). Counsel for Baggett argues that jeopardy attached when the jury was sworn in the first trial; therefore to try Baggett for the same offenses constitutes a violation of the double jeopardy clause of the Fifth Amendment. The government argues that the court rightfully rejected Baggett’s plea agreement and double jeopardy has no application to this case. “The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense.” United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976) (footnote omitted). “The underlying idea ... is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). Generally, jeopardy attaches in a jury trial when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Downum v. United States, 372 U.S. 734, 734-38, 83 S.Ct. 1033, 1033-36, 10 L.Ed.2d 100 (1963). In the case of a plea bargain, with respect to the offense pleaded to, jeopardy normally attaches when the court unconditionally accepts a guilty plea. United States v. Sanchez, 609 F.2d 761, 762-63 (5th Cir.1980) (per curiam). The question of when jeopardy attaches, however, only begins our inquiry. Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425 (1973). For" }, { "docid": "8983012", "title": "", "text": "the same offence to be twice put in jeopardy of life or limb . . U.S.Const. amend. 5. The Supreme Court in interpreting the amendment has held that a defendant is not placed in jeopardy until “a jury is empaneled and sworn.” Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), citing Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). We think the quoted language clearly refers to a jury sworn to try the case rather than to a panel sworn only for voir dire. As the Supreme Court has noted, a defendant is not placed in jeopardy until he is subjected to the risk of being convicted. Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); Serfass v. United States, 420 U.S. 377, 391-92, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). That risk cannot arise until a jury has been sworn to try the case; until that moment, a defendant is subject to no jeopardy, for the twelve individuals in the box have no power to convict him. Green argues that jeopardy must attach as soon as a jury has been selected even if it has not been sworn to try the case. If this were not so, he says, the government might contrive reasons for dismissing panels it found unsympathetic. Whatever merit this argument might possess in appropriate circumstances, it has no factual basis in this case. We hold that Green was not twice put in jeopardy. The conviction is Affirmed. . The District Court administers one oath to veniremen about to undergo voir dire and a separate oath to jurors about to try a case. The oaths are as follows: VOIR DIRE, Oath (Prospective jurors — not in jury box) Do you and each of you solemnly swear that you will well and truly answer all questions propounded to you, So help you God? OATH TO PETIT JURY, Criminal Do you and each of you solemnly" }, { "docid": "13082402", "title": "", "text": "numbering activities. Under our construction of § 3731, therefore, this order is appealable if the double jeopardy clause does not bar a future prosecution on this charge. Turning to this question, we find that the issue of the double jeopardy consequences of a dismissal of a count of an indictment by reason of its failure to provide the criminal defendant with sufficient notice of the charges against him has not been addressed by the Supreme Court. However, a series of recent decisions of the Court persuades us that the policies embodied in the double jeopardy clause will not be offended if defendant is prosecuted sometime in the future for allegedly engaging in numbers activities under circumstances constituting a § 1955 violation. The double jeopardy clause comes into play only when the criminal defendant has previously been “placed in jeopardy” on the charges in question. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). Here, there appears to be no question but that defendant was placed in jeopardy on the numbers charge since the jury was empaneled and sworn, see Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Although it might plausibly be argued that the district court’s conclusion that defendant had not been charged on a numbers theory prevented jeopardy from attaching, cf. Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 49 L.Ed. 114 (1904), it apparently is settled that jeopardy attaches upon the institution of trial proceedings, even if the indictment is defective. See Illinois v. Somerville, 410 U.S. 458, 466-67, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). The fact that defendant was placed in jeopardy of course “begins, rather than ends, the inquiry”. Illinois v. Somerville, supra, 410 U.S. at 467, 93 S.Ct. at 1072. The fundamental value embodied in the clause is the belief that, since repeated prosecutions cause a variety of hardships, subject the defendant to a continuing state of anxiety, and enhance the possibility that, although innocent," }, { "docid": "23604956", "title": "", "text": "individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Naturally, no question of double jeopardy arises unless jeopardy has first attached sometime prior to what the defendant seeks to characterize as the “second” prosecution. E.g., Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 2159, 57 L.Ed.2d 24 (1978); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 1062-64, 43 L.Ed.2d 265 (1975). Thus in this case, and in others like it, the question of when jeopardy first attached must be answered. In jury trials that moment occurs “when the jury is empaneled and sworn.” Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24 (1978) (applying this federal standard to the states); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) (setting jury empanelment as the time that jeopardy attaches in federal trials). In a plea bargaining context, the rule in this Circuit with respect to the offense pleaded to is that “[jjeopardy attaches with the acceptance of a guilty plea.” E.g., United States v. Sanchez, 609 F.2d 761, 762 (5th Cir.1980) (acceptance must be unconditional). This seems to be the general rule. And “[i]n a nonjury trial, jeopardy attaches when the court begins to hear evidence.” Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). The question we decide is whether the State of Texas infringed on Fransaw’s double jeopardy protection when it reinstated and tried him on a count it had dismissed after commencement of trial as part of the subsequently vitiated plea bargain. On numerous occasions, courts have held that the defendant may be prosecuted on counts dismissed as part of a vitiated plea bargain. We believe these cases are instructive, even though they involve plea bargains and dismissals entered before trial, because of" }, { "docid": "8983011", "title": "", "text": "Opinion PER CURIAM. PER CURIAM: This appeal presents only one question: whether jeopardy attaches under the Fifth Amendment when a panel of prospective jurors in a criminal case is sworn on the voir dire and a jury is selected but dismissed without being sworn for trial. The question arises from the conviction of DuBois Green for distribution of heroin. Nine days before the trial which resulted in the conviction in the District Court a panel of veniremen was called and sworn on the voir dire, and a jury was selected to hear Green’s case. Because a key prosecution witness was absent the court dismissed the jurors before they were sworn to try the case. Green contends that the empaneling of the jury placed him in jeopardy and barred his later trial on the same charges. We hold that jeopardy does not attach until a jury is sworn to try the case, and accordingly we reject Green’s contention. Green bases his appeal upon the provision of the Fifth Amendment that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb . . U.S.Const. amend. 5. The Supreme Court in interpreting the amendment has held that a defendant is not placed in jeopardy until “a jury is empaneled and sworn.” Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), citing Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). We think the quoted language clearly refers to a jury sworn to try the case rather than to a panel sworn only for voir dire. As the Supreme Court has noted, a defendant is not placed in jeopardy until he is subjected to the risk of being convicted. Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); Serfass v. United States, 420 U.S. 377, 391-92, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). That risk cannot arise until a jury has been sworn to try" }, { "docid": "23465226", "title": "", "text": "that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution. The provisions of this section, which are to be liberally construed, are designed 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, 1018, 43 L.Ed.2d 232 (1975). Section 3731 thus abrogates the strict rules which once practically barred all criminal appeals by the United States and directs our attention to the policies underlying the Double Jeopardy Clause. In particular, we must decide whether jeopardy had attached when Judge Brieant dismissed Von Barta’s indictment, for it is a “fundamental principle that an accused must suffer jeopardy before he can suffer double jeopardy.” Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 1065, 43 L.Ed.2d 265 (1975). See also United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). In United States v. Velazquez, 490 F.2d 29 (2d Cir. 1973), cert. denied, 421 U.S. 946, 95 S.Ct. 1675, 44 L.Ed.2d 99 (1975), one of the first cases in this Circuit to consider this question, we held that jeopardy had not attached when the district court, relying on motion papers submitted prior to trial, dismissed an indictment. In Serfass v. United States, however, the Supreme Court rejected Velazquez’s premise that the normal rules governing the attachment of jeopardy are only presumptions. While eschewing a mechanical approach, the Court stated that jeopardy does not attach until the accused has been forced to risk a determination of guilt. Id. 420 U.S. at 391-92, 95 S.Ct. at 1064. Consequently, the Court upheld the Government’s right to appeal the dismissal of Serfass’s indictment, although the district judge had found facts before ruling on the motion to dismiss. In this case, Judge Brieant did not resolve any disputed issues of fact in granting Von Barta’s motion to dismiss the indictment. He simply used the materials available to him to shed light on the Government’s theory of the case. Moreover, since Judge Brieant had" }, { "docid": "3139988", "title": "", "text": "Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars a second prosecution for the same offense or a lesser included offense. Brown v. Ohio, 432 U.S. 161, 168-69, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977). Jeopardy attaches to a prosecution when the jury is empaneled and sworn or, in a nonjury case, when the court begins to hear evidence. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062-63, 43 L.Ed.2d 265 (1975); see also United States v. Miller, 995 F.2d 865, 868 (8th Cir.1993). “Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier ‘having jurisdiction to try the question of the guilt or innocence of the accused.’ ” Serfass v. United States, 420 U.S. 377, 391, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265 (1975) (quoting Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 806, 49 L.Ed. 114 (1904)). “Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.” Id. 420 U.S. at 391-92, 95 S.Ct. at 1064. Where the record clearly shows that jeopardy had not attached when the first indictment was dismissed, the defendant has failed to state a colorable double jeopardy claim. Grabinski, 674 F.2d at 680. At the materiality hearing under the first indictment, the district court heard testimony from sworn witnesses, but there was no risk of a determination of guilt. We addressed a similar situation in United States v. Lasater, 535 F.2d 1041 (8th Cir.1976). Lasater was charged with violating 18 U.S.C. § 1623, id. at 1043, and the district court held a pretrial hearing on the issue of whether the allegedly perjured statements were material to the proceeding at which they were uttered, an essential element of the offense. Id. at 1046. At the hearing, the court received “[c]onsiderable documentary evidence” as well as testimony of witnesses on the materiality issue and then determined that the government failed to establish that the statement was material." }, { "docid": "14457082", "title": "", "text": "by Lisa. After she and Darlene forged the taxpayer and imaginary spouse’s signatures on the back, this check was sold to a government undercover agent. At trial, the three individuals whose W-2 forms had been stolen testified that they each had to request an additional W-2 form from their employer; that they did not sign their names on the federal income tax returns; that they did not have the dependents indicated on the returns; and that they did not know defendant and had not authorized him to receive their refund tax checks. . There of course is no question that jeopardy had already “attached” in this case at the time the jury was impaneled and sworn. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). . In this regard, this court recently framed the crucial inquiry to be made in determining whether Double Jeopardy bars government appeal in the following manner: “Once jeopardy has attached, and the proceedings are resolved in favor of the defendant, and the Government then appeals, will any proceedings after appeal require a determination of further factual issues before convicting or acquitting the defendant?” United States v. Finch, 548 F.2d 822, 826 (9th Cir. 1976). Since this question must be answered in the negative in this case, see discussion infra, we do not view the Double Jeopardy Clause as an obstacle to the government’s appeal here. . As the Supreme Court expressly stated in United States v. Wilson, supra, 420 U.S. at 352-53, 95 S.Ct. at 1026: “We therefore conclude that when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause.” In the companion case of United States v. Jenkins, supra, 420 U.S. at 365, 95 S.Ct. at 1011, the Supreme Court similarly stated in dicta: [Wjhere" }, { "docid": "7583709", "title": "", "text": "then temporarily excused, then dismissed. Nevertheless, we must hold that Rich cannot be tried again. In Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), the Court said, inter alia: Although it has thus long been established that jeopardy may attach in a criminal trial that ends inconclusively, the precise point at which jeopardy does attach in a jury trial might have been open to argument before this Court’s decision in Downum v. United States, 372 U.S. 734 [83 S.Ct. 1033, 10 L.Ed.2d 100]. There the Court held that the Double Jeopardy Clause prevented a second prosecution of a defendant whose first trial had ended just after the jury had been sworn and before any testimony had been taken. The Court thus necessarily pinpointed the stage in a jury trial that jeopardy attaches, and the Downum case has since been understood as explicit authority for the proposition that jeopardy attaches when the jury is empaneled and sworn. See United States v. Martin Linen Supply Co., 430 U.S. 564, 569 [97 S.Ct. 1349, 51 L.Ed.2d 642]; Serfass v. United States, 420 U.S. 377, 388 [95 S.Ct. 1055, 43 L.Ed.2d 265]. The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury. That interest was described in Wade v. Hunter, supra, as a defendant’s “valued right to have his trial completed by a particular tribunal.” 336 U.S., at 689 [69 S.Ct. 834]. It is an interest with roots deep in the historic development of trial by jury in the Anglo-American system of criminal justice. Throughout that history there ran a strong tradition that once banded together a jury should not be discharged until it had completed its solemn task of announcing a verdict. Regardless of its historic origin, however, the defendant’s “valued right to have his trial completed by a particular tribunal” is now within the protection of the constitutional guarantee against double jeopardy, since it is that “right” that lies at the foundation of the federal rule that" }, { "docid": "6555599", "title": "", "text": "alleges that each defendant “did aid, abet, counsel, command and induce [a third individual] to forge the endorsement of Bernice Goulder on [thirty-six separate] United States Saving[s] Bonds.” The final count in the 1976 indictment is a conspiracy count which alleges the same overt acts alleged in the conspiracy count of the first indictment. The defendants have moved to dismiss the 1976 indictment on double jeopardy and speedy trial grounds. I. DOUBLE JEOPARDY The double jeopardy clause of the fifth amendment states that “ . . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . The inclusion of the double jeopardy clause in the Bill of Rights was an acknowledgment by the founding fathers of this country of the severe and onerous burdens put on an individual by a criminal prosecution. The difficulties imposed on a criminal defendant were thought to be so great that it was only fair to allow the Government one chance to convict a person on any one crime. As the Supreme Court has expressed it, the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187-88 [78 S.Ct. 221, 223, 2 L.Ed.2d 199] (1957). The first inquiry for the court is whether jeopardy has attached. In the usual jüry trial, jeopardy attaches upon the impaneling and swearing of the jury. Serfass v. United States, 420 U.S. 377, 388 [95 S.Ct. 1055, 43 L.Ed.2d 265] (1975); Downum v. United States, 372 U.S. 734 [83 S.Ct. 1033, 10 L.Ed.2d 100] (1963). Having satisfied that requirement, in order for double jeopardy to apply, the general rule is that the two offenses “must be the same in law and in fact.” United States v. Pacelli, 470 F.2d" }, { "docid": "23604955", "title": "", "text": "Scott, 437 U.S. 82, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65 (1978), and has roots in three common-law pleas that banned the state from retrying a person previously “acquitted, convicted, or pardoned for the same offense.” Id. at 2192. In light of this common-law heritage, it is not surprising that the Supreme Court has stated that the double jeopardy clause itself incorporates “three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted); Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984) (same). In what has become a classic and oft-quoted passage, the Supreme Court explained that the “underlying idea” of the double jeopardy clause “is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Naturally, no question of double jeopardy arises unless jeopardy has first attached sometime prior to what the defendant seeks to characterize as the “second” prosecution. E.g., Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 2159, 57 L.Ed.2d 24 (1978); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 1062-64, 43 L.Ed.2d 265 (1975). Thus in this case, and in others like it, the question of when jeopardy first attached must be answered. In jury trials that moment occurs “when the jury is empaneled and sworn.” Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24 (1978) (applying this federal standard to the states); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10" }, { "docid": "23634501", "title": "", "text": "The Court stated: Although it has thus long been established that jeopardy may attach in a criminal trial that ends inconclusively, the precise point at which jeopardy does attach in a jury trial might have been open to argument before this Court’s decision in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100. There the Court held that the Double Jeopardy Clause prevented a second prosecution of a defendant whose first trial had ended just after the jury had been sworn and before any testimony had been taken. The Court thus necessarily pinpointed the stage in a jury trial that jeopardy attaches, and the Downum case has since been understood as explicit authority for the proposition that jeopardy attaches when the jury is empaneled and sworn (citations and footnote omitted). 98 S.Ct. at 2160. It is evident that the Supreme Court in Crist considered that the rule which was formulated by Downum in 1963 was made applicable to the states by Benton in 1969 and was not simply a mechanical or arbitrary rule of convenience. Even if we were to accept the position of the State, that Crist has established new and overruling principles of law — an argument which we reject — it is our view that Crist should be fully applied retroactively. The State relies on the three-pronged test of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) as the appropriate test of retroactivity. However, that contention ignores Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) in which the Court stated: The prohibition against being placed in double jeopardy is likewise not readily susceptible of analysis under the Linkletter line of cases. . The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of" } ]

[ { "docid": "14272936", "title": "", "text": "United States v. Kahn,\" 525 F.2d at 292, and we are not free to set a different one. We need not, however, adopt the Government’s reading of the statute in order to reject appellants’ arguments that the applications and orders here were defective. As to each of them, a holding that the Government was required to do more than it did would go far beyond the holding in Kahn. Labriola Labriola does not contend that he was “known” within the meaning of §§ 2518(l)(b)(iv), 2518(4)(a) when the first wiretap order was issued on July 5. At that time the authorities clearly did not have probable cause to believe that he was involved in the stolen securities conspiracy they were investigating. His contention is only that the Government was required to obtain an amended order as soon as it discovered his identity, even though the first order permitted interception of conversations of co-conspirators of Martino then unknown. Such an amendment is not required by the language of the federal statute, which sets minimum standards for the content of applications for orders and the orders themselves, but does not purport to require amendment when further conspirators are identified. Moreover, the argument that either the federal or the New York statute requires such amendment before expiration or renewal of the order seems inconsistent with the result in Kahn and has been rejected in the courts, as to the New York statute authoritatively. United States v. O’Neill, 497 F.2d 1020, 1023 (6th Cir. 1974); People v. Gnozzo, 31 N.Y.2d 134, 142, 335 N.Y.S.2d 257, 262, 286 N.E.2d 706 (1972), cert. denied sub nom. Zorn v. New York, 410 U.S. 943, 93 S.Ct. 1373, 35 L.Ed.2d 610 (1973). This interpretation leads to an equitable result in this case, for there is every indication that the police attempted to abide by the law. On the first occasion on which the investigators returned to court to report on their findings and request extension of the order, they fully complied with the statutory requirements, naming Labriola as one “known [to be] committing the offense and whose communications are" } ]

[ { "docid": "22584155", "title": "", "text": "Quite the contrary, 18 U.S.C. § 2517 manifests an intent to utilize cdl the evidence obtained by eavesdropping, and § 2517(5) expressly permits the use in court of evidence obtained by wiretap of a crime other than the crime upon which the court order was premised. Clearly Congress did not intend that evidence directly within the ambit of a lawful order should be suppressed because the officers, while awaiting the incriminating evidence, also gathered extraneous conversations. The nonincriminating evidence could be suppressed pursuant to 18 U.S.C. § 2518(10) (a), but the conversations the warrant contemplated overhearing would be admitted. If appellants, and the unindicted persons whose conversations were overheard, have any remedy under Title III other than the suppression of conversations outside the warrant’s scope, it lies in § 2520 as a civil suit against the investigating officers alleging that they exceeded their authority. See United States v. LaGorga, 336 F.Supp. at 196-197. III. Constitutionality of Title III Having determined that the application for this wiretap order was properly authorized by the Attorney General and that the conduct of the eavesdropping did not, in the circumstances, reflect a failure to minimize the interceptions, we now direct our attention to appellants’ last argument that this wiretapping search was invalid, to wit: their contention that the wiretapping enabling act is facially unconstitutional. We note at the outset that this case involves neither evidence of a crime other than that for which the wiretap order was procured, nor an emergency wiretap consummated prior to judicial authorization. Accordingly, we express no opinion as to those sections of the Act. See 18 U.S.C. §§ 2517(5); 2518(7). We are here concerned only with the basic thrust of the Act’s wiretap provisions. We note also that every court having decided the question has affirmed the Act’s constitutionality. Indeed the one circuit court case on the question involved the very wiretap here in question, and the appellant in that case is also an appellant in this case. See United States v. Cox, 449 F.2d 679 (10th Cir. 1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d" }, { "docid": "15380852", "title": "", "text": "be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.” 18 U.S.C. § 2518(5). Defendants argue that the Massachusetts statute is invalid because it contains no “minimization” provision. Title III does not require that the state wiretap statute contain any language expressly addressing the minimization requirement. At most, it requires state statutes to provide procedural protections that prevent the officers conducting the wiretap from unnecessarily seizing extraneous communications. We agree with the Massachusetts Supreme Judicial Court’s holding in Vitello that the Massachusetts wiretap statute provides adequate minimization safeguards. 367 Mass, at 266, 327 N.E.2d 819. For example, § 99 F(2)(e) of the Massachusetts statute requires the wiretap application to state that the communications sought to be intercepted are “material to a particularly described investigation” and are not privileged. Section 99 F(2)(f) requires that the application state, if practicable, the hours during which the interceptions are expected to occur. Section 99 1(3) states that the wiretap warrant must contain a “particular description of the nature of the oral or wire communications to be obtained by the interception”. Section 99 M(e) requires any agent who intercepted communications to swear to the content of communications intercepted but not recorded. The cumulative effect of these and other provisions is to “make clear to the executing officer that his surveillance is to be limited to the conversations material to designated offenses under investigation”. 367 Mass, at 266, 327 N.E.2d 819. It is still possible, of course, for a defendant to argue that a particular Massachusetts wiretap has been conducted in a manner that violates the minimization requirement of Title III. Defendants apparently attempt to make such an argument by noting that the warrants’ “only minimization restriction ... [is] to avoid recording ‘clearly non-criminal’ offenses”. This assertion is contradicted by the record. The order authorizing the interceptions specifically identifies the people whose conversations may be intercepted and limits interceptions of other conversations to a sixty-second initial check and subsequent ten-second spot checks to discover whether one of the named individuals has become a party to" }, { "docid": "5269964", "title": "", "text": "read limitations into the delegation authorized under the statute. In Vitello, the Supreme Judicial Court had imposed a “detailed judicial gloss in the nature of a set of required procedures” on this statute. Id. This gloss included “specific requirements” that (1) “an assistant district attorney ... bring the matter for examination before his senior officer, the district attorney”; (2) “the district attorney ... determine whether a particular proposed use of electronic surveillance would be consistent with the overall policy” by way of a “full examination ... of the application”; and (3) the district attorney “authorize each such application in writing.” Smith, 726 F.2d at 857-58 (quoting Vitello, 327 N.E.2d at 819). Arizona courts have not read into the Arizona statute limitations comparable to those read into the Massachusetts statute in Vitello. In the case before us, County Attorney Montgomery authorized four named Deputy County Attorneys, including Brockel, to apply for wiretaps in connection with investigation CWT-412. Montgomery’s authorization listed four telephone numbers and three named persons using those numbers, but Montgomery did not state that he was personally familiar with any evidence providing probable cause that would justify a wiretap on any of those numbers or persons. Nor did he state that he knew that other investigative techniques had failed in the past and were likely to fail or be dangerous in the future. The next day, Deputy County Attorney Brockel filed an application, signed under oath, for a wiretap on the four telephone numbers specified in Montgomery’s authorization. Brockel attached a lengthy sworn affidavit by three Phoenix Police Department detectives, that she attested to having read, providing probable cause to support the requested wiretaps and showing the failure of other investigative techniques. In Verdugo, the Arizona Court of Appeals, relying on the decision of the Massachusetts Supreme Judicial Court in Vitello, held that a wiretap authorized by delegated authority pursuant to Ariz. Rev. Stat. 13-3010(A) complied with § 2516(2). 883 P.2d at 420. The procedures by which the wiretap order in that case was obtained are very similar to the procedures in the case before us. In Verdugo, the" }, { "docid": "15069106", "title": "", "text": "S.Ct. at 968. We have also addressed the question of who is an “aggrieved person” under the statute. In United States v. Plotkin, 550 F.2d 693, 695 (1st Cir.), cert. denied sub nom. Considine v. United States, 434 U.S. 820, 98 S.Ct. 61, 54 L.Ed.2d 76 (1977), after an extensive review of the pertinent authority, we held: At the outset we note that all of the appellants are challenging the admission of the evidence on the ground that it is the fruit of an illegal wiretap which intercepted conversations of appellant Serino. None of the other appellants were allegedly overheard during any other illegal wiretap. Only appellant Serino therefore has standing to assert a violation of his Fourth Amendment rights in seeking to suppress t,he evidence. Our position is not unique. See, e. g., United States v. Wright, 524 F.2d 1100 (2d Cir. 1975); United States v. Scasino, 513 F.2d 47 (5th Cir. 1975). Appellant urges, however, that, even if he is not an “aggrieved person” under the statute, he should have standing to explore the background of the order authorizing the wiretaps under the fourth amendment because it was his house which was searched. This is a beguiling argument, but, on scrutiny, withers to a frail reed. While the intercepts did instigate the surveillance, they in no way, directly or indirectly, pointed to appellant or his residence as the source of the heroin to be sold. Neither Cruz’s name nor address came into the phone conversations at all. It was the surveillance of Gonzales, Kercado-Rivera, and the person who later turned out to be DeLeon which led the agents to appellant’s residence as the probable drug supply source. The fourth amendment has two applications in this case: one to the electronic surveillance, and the other to the search warrant. Each is distinct and separate. Appellant was well within his rights in challenging the affidavit basis of the warrant which authorized the search of his home, but he has no standing to examine the authorization material for the wiretap, since neither his phone nor his conversations was implicated. Our analysis" }, { "docid": "5052897", "title": "", "text": "basis on which to attack these wiretap authorizations. Thus, it is only with respect to the initial Plant C and Plant H orders that DiFazio possesses the standing to claim that he should have been named in these initial orders. For the reasons stated with respect to the identical contention of defendant Hali, supra, DiFazio’s contention is similarly without merit. DiFazio’s contention that under the New York statute suppression is required for failure to promptly amend the orders to include him as a person to be intercepted is based on a misinterpretation of applicable New York law. As the New York Court of Appeals stated in People v. Gnozzo, 31 N.Y.2d 134, 335 N.Y.S.2d 257, 286 N.E.2d 706 (1972), cert. denied, 410 U.S. 973, 93 S.Ct. 373, 35 L.Ed.2d 610 (1973): Where the communication intercepted involves the crime specified in the warrant, the named suspect, and an unknown outside party, at least in this instance, the communication is “sought” and no amendment is required. Whether an amendment is required depends on the disclosure of a different crime, and perhaps on other circumstances, but not against whom the communication is to be used. Id. 31 N.Y.2d at 143, 335 N.Y.S.2d at 263, 286 N.E.2d at 710 (citations omitted). Thus, no immediate amendment was required and the naming of DiFazio in the extension orders satisfied the New York statute. See United States v. Principie, 531 F.2d 1132, 1137-38 (2d Cir. 1976), cert. denied, 430 U.S. 905, 97 S.Ct. 1173, 51 L.Ed.2d 581 (1977); United States v. O’Neill, 497 F.2d 1020 (6th Cir. 1974); United States v. Austin, 399 F.Supp. 698 (E.D.N.Y.1975); Gnozzo, supra. Moreover, this contention has been rejected in terms of the federal statute as well. Principie, supra, 531 F.2d at 1137-38. Finally, DiFazio’s claim that all of the conversations relating to the crime of commercial bribery must be suppressed for failure to comply with the “as soon as practicable” provision of C.P.L. § 700.65(4) is also denied for the reasons stated with respect to defendant Hali, supra. DeCICCO WIRETAP DeCicco’s primary contention is that the four February 20,1976 telephone calls" }, { "docid": "15380851", "title": "", "text": "Massachusetts, the superior court is a court of general criminal jurisdiction. Mass.Gen.Laws Ann. ch. 212, § 6; see also New England Telephone & Telegraph Co. v. District Attorney of Norfolk County, 374 Mass. 569, 373 N.E.2d 960 (1978), citing Commonwealth v. Kemp, 254 Mass. 190,150 N.E. 172 (1926). Any superi- or court justice, regardless of the county in which he sits, exercises all the jurisdiction of the court. Mass.Gen.Laws Ann. ch. 212, §§ 1, 2. The Massachusetts statute could, in compliance with Title III, authorize the applicant to seek a wiretap warrant from any superior court justice anywhere in the state; but § 99 G limits the applicant’s choice to a justice sitting in the county in which the tap is to occur or in the county in which the applicant’s office is located. In this respect the Massachusetts statute is more restrictive, not less restrictive, than Title III demands. In another challenge to the wiretap procedure followed in their case, defendants point out that Title III provides, “Every order and extension thereof ... shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.” 18 U.S.C. § 2518(5). Defendants argue that the Massachusetts statute is invalid because it contains no “minimization” provision. Title III does not require that the state wiretap statute contain any language expressly addressing the minimization requirement. At most, it requires state statutes to provide procedural protections that prevent the officers conducting the wiretap from unnecessarily seizing extraneous communications. We agree with the Massachusetts Supreme Judicial Court’s holding in Vitello that the Massachusetts wiretap statute provides adequate minimization safeguards. 367 Mass, at 266, 327 N.E.2d 819. For example, § 99 F(2)(e) of the Massachusetts statute requires the wiretap application to state that the communications sought to be intercepted are “material to a particularly described investigation” and are not privileged. Section 99 F(2)(f) requires that the application state, if practicable, the hours during which the interceptions are expected to occur. Section 99 1(3) states that the wiretap warrant must contain a “particular description of the nature" }, { "docid": "7331853", "title": "", "text": "relief. Dubose does not allege that law enforcement’s wiretap application violated Title Ill’s particularity mandates, but, rather, the Fourth Amendment’s. In Berger v. New York, the Supreme Court invalidated New York’s eavesdropping law on Fourth Amendment particularity grounds because it authorized the ex parte issuance of wiretap and “bugging” warrants merely on the basis of a law enforcement official’s affidavit swearing that he or she had a “ ‘reasonable ground to believe that evidence of crime may be thus obtained.’ ” 388 U.S. 41, 54, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (quoting N.Y.Crim. Proc. Law § 813-a) (emphasis added). In its decision, the Court noted that the New York law “la[id] down no requirement for particularity in the warrant as to what specific crime has been or is being committed, nor ‘the place to be searched,’ or ‘the persons or things to be seized’ as specifically required by the Fourth Amendment.” Id. at 56, 87 S.Ct. 1873. Finally, and critically important to the present analysis, the Berger Court conceded that “[i]t is true that the statute requires the naming of ‘the person or persons whose communications, conversations or discussions are to be overheard or recorded’ ” but concluded that “this does no more than identify the person whose constitutionally protected area is to be invaded rather than ‘particularly describing’ the communications, conversations, or discussions to be seized.” Id. at 59, 87 S.Ct. 1873. Thereafter, in United States v. Kahn, the Supreme Court concluded that “Title III requires the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that individual is ‘committing the offense’ for which the wiretap is sought.” 415 U.S. 143, 155, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974) (emphasis added). In other words, the Supreme Court in Kahn decided, on statutory grounds, the very question that this court now considers on constitutional grounds. See id. at 150, 94 S.Ct. 977 (“The question presented is simply whether the conversations that the Government wishes to introduce into evidence at the respondents’ trial are made inadmissible by the" }, { "docid": "15380850", "title": "", "text": "take place partly in his county. The fact that he is not responsible to a Norfolk County electorate should not prevent him from seeking a warrant to tap telephones located in that county if he can establish probable cause to believe that the intercepted conversations will provide evidence of a conspiracy taking place in his own county. See United States v. Lilia, 534 F.Supp. 1247 (N.D.N.Y.1982) (holding that Title III “does not purport to dictate to states what the geographical authority of their enforcement officers must be”); People v. DiPasquale, 47 N.Y.2d 764, 391 N.E.2d 710, 417 N.Y.S.2d 678 (1979) (holding that under New York law, a district attorney may apply for an out-of-county wiretap warrant as long as there is a “sufficient nexus” between the conduct covered by the application and the county represented by the district attorney). The provision of Title III that authorizes state wiretap statutes says that the appropriate state prosecuting attorney may apply “to a State court judge of competent jurisdiction” for a wiretap warrant. 18 U.S.C. § 2510(9)(b). In Massachusetts, the superior court is a court of general criminal jurisdiction. Mass.Gen.Laws Ann. ch. 212, § 6; see also New England Telephone & Telegraph Co. v. District Attorney of Norfolk County, 374 Mass. 569, 373 N.E.2d 960 (1978), citing Commonwealth v. Kemp, 254 Mass. 190,150 N.E. 172 (1926). Any superi- or court justice, regardless of the county in which he sits, exercises all the jurisdiction of the court. Mass.Gen.Laws Ann. ch. 212, §§ 1, 2. The Massachusetts statute could, in compliance with Title III, authorize the applicant to seek a wiretap warrant from any superior court justice anywhere in the state; but § 99 G limits the applicant’s choice to a justice sitting in the county in which the tap is to occur or in the county in which the applicant’s office is located. In this respect the Massachusetts statute is more restrictive, not less restrictive, than Title III demands. In another challenge to the wiretap procedure followed in their case, defendants point out that Title III provides, “Every order and extension thereof ... shall" }, { "docid": "5269963", "title": "", "text": "N.E.2d at 825). The text of § 13-3010(A) closely resembles the text of the Massachusetts statute at issue in Vitello and later upheld, as applied, in Smith. The Massachusetts statute provided, “The attorney general, any assistant attorney general specially designated by the attorney general, any district attorney, or any assistant district attorney specially designated by the district attorney may apply ex parte to a judge of competent jurisdiction for a warrant to intercept wire or oral communications.” Mass. Gen. Laws Ann. ch. 272, § 99(F)(1)Smith, 726 F.2d at 857. However, the First Circuit in Smith did not hold that the bare text of the Massachusetts statute complied with Title III. Indeed, it strongly implied that the broad delegation authorized by the Massachusetts statute, standing alone, did not comply and was therefore preempted by § 2516(2). See Smith, 726 F.2d at 857 (“If this were the complete statutory framework, appellants’ arguments would have formidable force.”). The First Circuit concluded the Massachusetts statute was consistent with § 2561(2) only because the Massachusetts Supreme Judicial Court had previously read limitations into the delegation authorized under the statute. In Vitello, the Supreme Judicial Court had imposed a “detailed judicial gloss in the nature of a set of required procedures” on this statute. Id. This gloss included “specific requirements” that (1) “an assistant district attorney ... bring the matter for examination before his senior officer, the district attorney”; (2) “the district attorney ... determine whether a particular proposed use of electronic surveillance would be consistent with the overall policy” by way of a “full examination ... of the application”; and (3) the district attorney “authorize each such application in writing.” Smith, 726 F.2d at 857-58 (quoting Vitello, 327 N.E.2d at 819). Arizona courts have not read into the Arizona statute limitations comparable to those read into the Massachusetts statute in Vitello. In the case before us, County Attorney Montgomery authorized four named Deputy County Attorneys, including Brockel, to apply for wiretaps in connection with investigation CWT-412. Montgomery’s authorization listed four telephone numbers and three named persons using those numbers, but Montgomery did not state that" }, { "docid": "15380826", "title": "", "text": "OPINION EN BANC COFFIN, Circuit Judge. These multiple appeals from drug conspiracy convictions resulted in reversals by a panel of our court, which found that a section of the Massachusetts wiretap statute, Mass.Gen.Laws Ann. ch. 272, § 99 F(1), identifying officials empowered to apply for wiretap warrants, afforded less procedural protection than did the comparable section of the federal statute, 18 U.S.C. § 2516(2). A petition for rehearing en banc was granted, the panel’s opinion withdrawn, supplemental briefs submitted, and reargument had. We now decide that the Massachusetts statute, supplemented by the procedures required by the Massachusetts Supreme Judicial Court in Commonwealth v. Vitello, 367 Mass. 224, 327 N.E.2d 819 (1975), does not conflict with or diminish federal requirements and is thus not facially invalid. Because of the particular circumstances relating to the authorizations of the wiretaps in these cases and because of the failure to follow a procedure specifically recommended in Vitello we remand to the district court for further findings. As for the remaining issues raised we see no reversible error. I. Validity of Authorization for Wiretaps A. Facts Evidence leading to the conviction of the sixteen appellants now before us arose from a joint investigation conducted by federal agents of the Drug Enforcement Administration, members of the Boston Police Drug Control Unit and officers assigned to the Organized Crime Division of the Suffolk County District Attorney’s Office in Massachusetts. Crucial evidence, indicating defendants’ participation in an illegal heroin distribution network, was collected by electronic surveillance of five telephone numbers in Norfolk and Suffolk counties. Recordings of the intercepted conversations, along with the results of visual surveillance, were presented to a federal grand jury, which returned an indictment charging nineteen defendants with a conspiracy to “knowingly and intentionally possess with intent to distribute and to distribute quantities of heroin, a Schedule I controlled substance, in violation of Title 21, United States Code, Section 841(a)(1); all in violation of Title 21, United States Code, Section 846”. Before trial defendants filed consolidated motions to suppress the evidence obtained via wiretaps and to dismiss the indictments; these motions were denied. After" }, { "docid": "1358417", "title": "", "text": "12th application. Because the district court was uncertain whether Massachusetts law required re-designation and personal review by the district attorney when new numbers were added to an existing wiretap, it ordered District Attorney Blodgett to file “an affidavit regarding his authorization of the particular amendments at issue.... ” District Attorney Blodgett filed such an affidavit in which he made clear that he “personally reviewed each and every renewal application” prior to its submission and that he intended the specially designated assistant district attorneys to oversee the entire investigation, including both the original wiretaps and the “renewals.” The affidavit also stated that, as the district court inferred in its initial ruling, District Attorney Blodgett did in fact personally authorize the October 12th wiretap application. The district court therefore denied the suppression motion as to the remaining wiretaps. We have previously held that, in combination with letters substantially equivalent to the ones that accompanied the initial application in this case, an affidavit like that submitted by District Attorney Blodgett is sufficient to establish actual authorization. United States v. Albertelli, 687 F.3d 439, 443 (1st Cir.2012). We therefore have no reason to question the district court’s factual finding that each wiretap application was specifically and personally authorized by District Attorney Blodgett as Massachusetts and federal law require. The district court also did not err by failing to hold an evidentiary hearing because the court inquired into the particular circumstances and “the only material dispute was not about what happened but whether the district attorney’s version of what he did was sufficient oversight.” Id. Certainly Lyons points to no evidence he could have sought to introduce or discover at an evidentiary hearing which could have contradicted District Attorney Blodgett’s version of events. Nor does he point even to a question he might have asked Blodgett. We therefore face similar facts as in Alberbelli and so reach the same result — the wiretap was properly authorized. c. Facial Sufficiency of the Wiretap Application Lyons also argues that the wiretap evidence should be suppressed because, even if the warrant was properly authorized, it did not make" }, { "docid": "5052908", "title": "", "text": "with respect to the second, third and fourth interceptions, since these interceptions were within the scope of the Plant C order, immediate amendment of that order was not required and the naming of defendant in the extension order fully complied with applicable state and federal law. See United States v. O’Neill, 497 F.2d 1020 (6th Cir. 1974); United States v. Austin, 399 F.Supp. 698 (E.D.N.Y.1975); People v. Gnozzo, 31 N.Y.2d 134, 143, 335 N.Y.S.2d 257, 263, 286 N.E.2d 706, 710 (1972), cert. denied, Zorn v. New York, 410 U.S. 943, 93 S.Ct. 1373, 35 L.Ed.2d 610 (1973). In summary, the challenged communications were properly intercepted pursuant to the Plant C order and could be utilized to establish probable cause for the Plant H order. DeCicco’s contention that a Plant C amendment order was necessary prior to use of the conversation in the Plant H affidavit is similarly unavailing. Accordingly, DeCicco’s motion to suppress the Plant H interceptions and the four challenged Plant C conversations is denied in all respects. FRANK WIRETAP By order dated February 23, 1976, electronic surveillance was authorized on defendant Frank’s home telephone (hereinafter “Plant G”). Frank has moved to suppress all communications, evidence and leads obtained pursuant to this order on two grounds. He first claims that the wiretap application failed to comply with the federal and state statutes which require particularization of the crime and justification or explanation for the applicant’s conclusion that probable cause exists. See 18 U.S.C. § 2518(l)(b) (1970); C.P.L. § 700.-20(2)(b). Secondly, Frank alleges that the wiretap application omitted material portions of the transcript of a conversation between defendant Valen te and defendant Hali. Frank claims that this omission constituted a knowing and material misrepresentation of fact which requires invalidation of the eavesdropping warrant. The essence of defendant’s first argument is that the application contained neither sufficient details as to the particular offense nor an adequate statement of the facts from which the applicant could conclude that probable cause existed as to the particular offense. The Plant G application incorporated the affidavit of Detective Johnson which had been submitted in support" }, { "docid": "18975755", "title": "", "text": "PER CURIAM. In the en banc decision entered on January 17, 1984, we remanded this case to the district court to determine only “the existence and extent of authorizations” by the district attorney for certain wiretap renewals and amendments. United States v. Smith, 726 F.2d 852, 859-60 (1st Cir.1984). After a hearing on remand, the district court concluded “that all wiretaps in this case were properly authorized as to all defendants.” 587 F.Supp. 653. Defendants-appellants now argue on appeal that Commonwealth v. Vitello, 367 Mass. 224, 327 N.E.2d 819 (1975), mandates reversal of the district court’s judgment upholding use of the wiretap evidence. They claim that Vitello requires the district attorney to give contemporaneous written authorization for all wiretap renewal and amendment applications. Since the district court based its findings of actual authorization only on post hoc testimonial evidence, appellants contend that the wiretap evidence must be suppressed. Appellants belatedly raised this claim for the first time at the en banc oral argument. Without the benefit of briefing on the issue, we concluded that Massachusetts law requires proof of actual authorization and remanded the case to the district court for such proof. We had in mind only that the court conduct an individualized inquiry into the existence of actual authorization for the wiretap renewals and amendments. Although we indicated that the presence of documentation would be conclusive on this point, we did not state that a writing was essential to prove adequate authorization. The district court conducted the inquiry we requested and we, therefore, affirm the judgment below. We do not suggest by our decision that Massachusetts allows post hoc testimonial evidence to prove authorization for wiretap renewal and amendment applications. We simply note that in the en banc decision of this case, we stated that actual authorization, regardless of form, was necessary. Based on this earlier decision, we refuse to reconsider the merits of appellants’ authorization claim. Although the analysis has been focused and refined since the en banc argument, we believe our earlier decision stands as law of the case and, as such, became binding precedent in successive" }, { "docid": "1358416", "title": "", "text": "here. One letter was addressed to the state justice receiving the application and the other was addressed to the assistant district attorneys being specially designated. In addition to authorizing the assistant district attorneys to file the applications, the letter to the state justice explained that “all of [the wiretap applications] shall be reviewed by me or my designee before being presented to you.” Standing on its own, this letter might be insufficient because Massachusetts requires that the district attorney personally review the application—a desig-nee is insufficient. Vitello, 367 Mass, at 231-32, 327 N.E.2d 819. However, in an initial ruling on the suppression motion, the district court determined that “[t]he fact that the designation letter, the letter to [the state justice], and the warrant application were all dated October 12 supports the reasonable inference that they were all presented together and that D.A. Blodgett was familiar with the contents of the application.” This inference was not clearly erroneous. The district court therefore properly denied the suppression motion as to the phone numbers listed in the October 12th application. Because the district court was uncertain whether Massachusetts law required re-designation and personal review by the district attorney when new numbers were added to an existing wiretap, it ordered District Attorney Blodgett to file “an affidavit regarding his authorization of the particular amendments at issue.... ” District Attorney Blodgett filed such an affidavit in which he made clear that he “personally reviewed each and every renewal application” prior to its submission and that he intended the specially designated assistant district attorneys to oversee the entire investigation, including both the original wiretaps and the “renewals.” The affidavit also stated that, as the district court inferred in its initial ruling, District Attorney Blodgett did in fact personally authorize the October 12th wiretap application. The district court therefore denied the suppression motion as to the remaining wiretaps. We have previously held that, in combination with letters substantially equivalent to the ones that accompanied the initial application in this case, an affidavit like that submitted by District Attorney Blodgett is sufficient to establish actual authorization. United States" }, { "docid": "18975758", "title": "", "text": "in any matter, civil or criminal, where, as here, the arguments advanced by appellants on remand are in clear conflict with the prior decision in the case. Paul v. United States, 734 F.2d 1064, 1065-1066 (5th Cir.1984). If appellants doubted the correctness of the law of the case as established by the en banc decision, it was incumbent upon them either to petition for rehearing or to move for recall of the mandate. See J. Moore, J. Lucas, T. Currier, IB Moore’s Federal Practice II 0.404[10] (1983). Failure to challenge our decision in the proper manner bound the district court to our instructions on remand, and we feel it would be an improper use of judicial resources to reconsider the questioned ruling at this time. Appellant Variste makes an additional claim based on the district court findings. In contrast to the wiretap renewal applications, for which the district court found actual authorization, the court found that the wiretap amendment application which added appellant Variste’s name as an interceptee to an existing (authorized) wiretap was not specifically authorized by the attorney general prior to submission to the Massachusetts courts for approval. The court below concluded, however, that because Mass.Gen.Laws Ann. ch. 272, § 99 does not require actual authorization by the district attorney for amendment applications, the filing of the amendment was lawful. As to this point, we also affirm. The question of when (if ever) and how (if at all) an authorized wiretap should be amended to add the names of new interceptees is one of first impression in Massachusetts. No provision in the Massachusetts statute speaks directly to this question, nor does Vitello provide much guidance. We decline to attempt to provide our own gloss covering this aspect of Massachusetts wiretap law, and therefore do not reach the government’s argument that it is never necessary to amend a wiretap warrant to authorize the interception of conversations of new individuals overheard discussing the crime specified in the warrant. See United States v. Principie, 531 F.2d 1132, 1137 (2d Cir.1976); United States v. O’Neill, 497 F.2d 1020, 1023 (6th Cir.1974) (discussing" }, { "docid": "15380854", "title": "", "text": "the conversation. It provides that the intercepting device be monitored at all times, so that there is no automatic recording of conversations not covered by the intercept order. It forbids the recording of conversations that are clearly non-criminal or are privileged. It requires written reports at three-day intervals advising the judge of the results of the interceptions and the need for continued interceptions. These specific directions, combined with the order’s general direction that the “law enforcement officers executing this order shall make interceptions in such a way as to minimize the interceptions of oral or wire communications not otherwise subject to interception”, provide ample protection against unwarranted seizures. The Supreme Judicial Court’s decision in Vitello disposes of a number of other objections that defendants make to the Massachusetts wiretap statute. We have already noted that we regard the statute as existing in the form given to it by the Supreme Judicial Court’s interpretation: for our purposes, the provisions “read into” the statute by the Supreme Judicial Court are as much a part of the Massachusetts wiretap law as the language enacted by the legislature. We hold that Vitello adequately answers the following claims made by defendants: Claim C that § 99 K does not require execution of wiretap warrants “as soon as practicable”, 367 Mass, at 260-61, 327 N.E.2d 819; Claim E that the warrant execution provision in § 99 K(2) of the Massachusetts statute conflicts with § 2516(2) and § 2518(4)(d) of Title III, id. at 260, 327 N.E.2d 819; Claim H that § 99 B(7) allows electronic surveillance for offenses not within the scope of the federal authorization in § 2516(2), id. at 268, 327 N.E.2d 819 (defendants were convicted of conspiracy, as Title III authorizes, not of simple possession of drugs); Claim I that § 99 E(3) does not require “a full and complete statement” that normal investigative procedures have been tried and have failed, id. at 259, 327 N.E.2d 819; Claim K that § 99 M and N do not require immediate return of the warrant and sealing of the tapes and so conflict with §" }, { "docid": "17588685", "title": "", "text": "or in the order. The district court specifically found that Vara’s name, identity, and activities became known to the government agents only during the course of the interceptions authorized by the Nevada court. The language of § 2518(l)(e) does not require disclosure of information about prior interceptions, but only of information about prior applications. See United States v. Bellosi, 163 U.S.App.D.C. 273, 501 F.2d 833, 839 (1974). Moreover, Vara’s claim is controlled by our decision in United States v. O’Neill, 497 F.2d 1020 (6th Cir. 1974). The appellants in O’Neill asserted that the application to intercept their communications did not contain information about other communications of theirs that had been intercepted by means of an earlier state authorized wiretap. Just as the Nevada wiretap application did not name Vara, so the state authorization in O’Neill did not name O’Neill and his co-defendants. In O’Neill, 497 F.2d at 1026, we held: Since the application [for interception] disclosed the only previous authorizations known to the applicants and to the Acting Attorney General who authorized the application, there was complete compliance with the requirement of the statute. [18 U.S.C. § 2518(l)(e)]. We also stated that even if the applicants for the federal wiretaps had known that O’Neill’s conversations had previously been intercepted pursuant to the state authorization, § 2518(l)(e) would not require this disclosure unless O’Neill or his residence had been designated in the state application and order. Since neither Vara nor his residence was designated in the Nevada wiretap application or order, we determine that there was no violation of the statute. III. SUFFICIENCY OF EVIDENCE. Finally, appellants attack the sufficiency of the evidence that led to their convictions. In determining whether there is sufficient evidence to support a jury’s verdict, the evidence must be viewed in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Leon, 534 F.2d 667 (6th Cir. 1976). We are firmly convinced that the evidence presented in the court below was sufficient to support appellants’ conviction of violating 18 U.S.C. § 1084." }, { "docid": "18975759", "title": "", "text": "specifically authorized by the attorney general prior to submission to the Massachusetts courts for approval. The court below concluded, however, that because Mass.Gen.Laws Ann. ch. 272, § 99 does not require actual authorization by the district attorney for amendment applications, the filing of the amendment was lawful. As to this point, we also affirm. The question of when (if ever) and how (if at all) an authorized wiretap should be amended to add the names of new interceptees is one of first impression in Massachusetts. No provision in the Massachusetts statute speaks directly to this question, nor does Vitello provide much guidance. We decline to attempt to provide our own gloss covering this aspect of Massachusetts wiretap law, and therefore do not reach the government’s argument that it is never necessary to amend a wiretap warrant to authorize the interception of conversations of new individuals overheard discussing the crime specified in the warrant. See United States v. Principie, 531 F.2d 1132, 1137 (2d Cir.1976); United States v. O’Neill, 497 F.2d 1020, 1023 (6th Cir.1974) (discussing the New York wiretap statute). Absent a pronouncement from the state court, we will not infer a requirement of district attorney authorization from this otherwise silent statute. Moreover, the wiretap amendment which named Variste did receive judicial authorization. The district court carefully followed our directions on remand and made fact findings based on substantial evidence. We are, also, unpersuaded by appellants’ remaining arguments. Accordingly, the judgment below is Affirmed." }, { "docid": "15380853", "title": "", "text": "of the oral or wire communications to be obtained by the interception”. Section 99 M(e) requires any agent who intercepted communications to swear to the content of communications intercepted but not recorded. The cumulative effect of these and other provisions is to “make clear to the executing officer that his surveillance is to be limited to the conversations material to designated offenses under investigation”. 367 Mass, at 266, 327 N.E.2d 819. It is still possible, of course, for a defendant to argue that a particular Massachusetts wiretap has been conducted in a manner that violates the minimization requirement of Title III. Defendants apparently attempt to make such an argument by noting that the warrants’ “only minimization restriction ... [is] to avoid recording ‘clearly non-criminal’ offenses”. This assertion is contradicted by the record. The order authorizing the interceptions specifically identifies the people whose conversations may be intercepted and limits interceptions of other conversations to a sixty-second initial check and subsequent ten-second spot checks to discover whether one of the named individuals has become a party to the conversation. It provides that the intercepting device be monitored at all times, so that there is no automatic recording of conversations not covered by the intercept order. It forbids the recording of conversations that are clearly non-criminal or are privileged. It requires written reports at three-day intervals advising the judge of the results of the interceptions and the need for continued interceptions. These specific directions, combined with the order’s general direction that the “law enforcement officers executing this order shall make interceptions in such a way as to minimize the interceptions of oral or wire communications not otherwise subject to interception”, provide ample protection against unwarranted seizures. The Supreme Judicial Court’s decision in Vitello disposes of a number of other objections that defendants make to the Massachusetts wiretap statute. We have already noted that we regard the statute as existing in the form given to it by the Supreme Judicial Court’s interpretation: for our purposes, the provisions “read into” the statute by the Supreme Judicial Court are as much a part of the Massachusetts" }, { "docid": "23515823", "title": "", "text": "this case.” (Emphasis supplied.) 462 F.2d at 33. While § 2517(5) is not specifically mentioned in the Grant opinion, our later decision in United States v. Tortorello, 480 F.2d 764 (2 Cir. 1973), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1974), cites this holding directly on the question of when subsequent judicial approval is required by § 2517(5) (or by the New York statute which is “substantially identical” to it, id. at 782). Tortorello involved an appeal from convictions for federal offenses involving, inter alia, securities fraud, following a trial at which testimony of conversations, heard as a result of state-authorized wiretaps, had been admitted into evidence. The orders authorizing those wiretaps had been sought in the investigation of state crimes involving stolen property and forged instruments, including more particularly grand larceny, and the defendant argued that they had not been properly amended “to include reference to the securities fraud offenses for which he was indicted by a federal grand jury,” id. at 781. Although the court held that the procedures followed in the state court had in fact amounted to the requisite amendment, it also expressed agreement with the Government's contention that no amendment was needed because the crime of grand larceny encompassed stock fraud and the supporting affidavits made clear the specific crimes being investigated. Id. at 782-83. The court cited Grant on this specific point. Id. at 783 n. 17. Obviously, the strict interpretation of “other” offenses announced in the present majority opinion is at odds with these cases. The majority opinion also calls into question another law enforcement practice which has been approved by this court on more than one occasion, namely the use of joint federal-state wiretap investigations pursuant to a state warrant. In United States v. Manfredi, 488 F.2d 588 (2 Cir. 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974), to take one example, we affirmed the defendants’ convictions for federal narcotics offenses where evidence had been gathered through the use of state-authorized telephone interception in which a federal agent played a cooperative role from" } ]

[ { "docid": "7115309", "title": "", "text": "10th request. Rather, the district court denied St. Marys’ motion for attorneys’ fees on the merits. We may assume, therefore, that the district court implicitly gave St. Marys’ leave to file its motion out of time when it addressed the merits of St. Marys’ fee request. With a few enumerated exceptions not relevant to the present appeal, Rule 6(b)(2) permits a district court to address an untimely motion “where the failure to [timely] act was the result of excusable neglect.” In the default context, we have recently recognized that “‘excusable neglect’ includes ‘late filings caused by inadvertence, mistake or carelessness.’ ” Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 784 (8th cir.1998) (quoting Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). Although we must consider “all relevant circumstances,” the following factors are particularly important: (1) the possibility of prejudice to Dr. Sugarbaker; (2) the length of St. Marys’ delay and the possible impact of that delay on judicial proceedings; (3) St. Marys’ reasons for delay, including whether the delay was within its reasonable control; and (4) whether St. Marys acted in good faith. See id. St. Marys claims that it filed its motion for attorneys’ fees one day late because it miscalculated the deadline. Thus, the late filing was due to “inadvertence, mistake or carelessness” and could possibly be excused. Considering the relevant circumstances, we conclude that even though St. Marys’ failure to comply with the deadlines imposed by Rule 54(d)(2)(B) was within its own control, its failure to file its motion on time was nonetheless excusable neglect. First, St. Marys’ filed its motion only one day late. Hence, Dr. Sugarbaker was not prejudiced. Second, the one day delay did not adversely impact any further judicial proceedings — this court has been able to address the present fee issue contemporaneously with the merits of the underlying legal dispute. Finally, we have no reason to doubt St. Marys’ good faith. Therefore, we hold that the district court did not abuse its discretion in considering St. Marys’ untimely fee request." } ]

[ { "docid": "8749869", "title": "", "text": "that excusable neglect is “a somewhat ‘elastic concept’ and is not limited strictly to omissions caused by circumstances beyond the control of the movant.” In its holding, the Court concluded “that the determination is ... an equitable one, taking account of all relevant circumstances....” Factors specifically enumerated include: (1) the danger of prejudice to opposing parties; (2) length of delay in judicial proceedings and its impact; (3) the reason for the, delay, including whether it was in the control of the late-filer; and (4) whether the late-filer acted in good faith. The Supreme Court found excusable neglect to be present because the deadline for filing claims in Pioneer was not made a conspicuous part of the notice sent to creditors and that a claims deadline such as the deadline at issue was “outside the ordinary-course in bankruptcy cases.” However, the Court stated that in considering the issue of excusable neglect, “we give little weight to the fact that counsel was experiencing upheaval in his law practice at the time of the bar date.” Ms. Lang has not cited, and the Court in conducting its own research has been unable to locate, a single case that stands for the proposition she asks us to adopt: namely, that the failure to comply with the deadline for the filing of a notice of appeal due to the press of other business constitutes excusable neglect. Virtually all of the published decisions on the issue, both pre-and post-Pioneer, reach the opposite conclusion. We believe that the language contained in Pioneer to the effect that “upheaval” in a law practice is not probative of excusable neglect precludes Ms. Lang’s reliance upon Pioneer. The only basis set forth in the Extension Motion to justify Ms. Lang’s neglect in this matter was the press of other business. However, in the brief that was submitted to this Court, Ms. Lang argues that she will be prejudiced if the Extension Motion is not allowed because she will be unable to prosecute her appeal. Ms. Lang may be correct, but regardless, dismissal of an appeal is not the type of prejudice" }, { "docid": "20475765", "title": "", "text": "reasons for excusing such failure apply. Accordingly, the district court properly granted Appellees’ motion for summary judgment. IV. Leave to File Answers Out of Time Chorosevic also appeals the district court’s order granting Appellees leave to file answers nearly seven months after the court partially granted Appellees’ motion to dismiss. We review a district court’s decision to allow a party to submit a late filing for an abuse of discretion. Sugarbaker v. SSM Health Care, 187 F.3d 853, 855-56 (8th Cir.1999). “An abuse of discretion occurs where the district court fails to consider an important factor, gives significant weight to an irrelevant or improper factor, or commits a clear error of judgment in weighing those factors.” Gen. Motors Corp. v. Harry Brown’s, LLC, 563 F.3d 312, 316 (8th Cir.2009). Federal Rule of Civil Procedure 6(b)(1)(B) permits a district court to extend the time for a party to submit a filing “if the party failed to act because of excusable neglect.” Excusable neglect is an “elastic concept” that empowers courts to accept, “where appropriate, ... late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The determination of whether neglect is excusable “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. at 395, 113 S.Ct. 1489. “[T]he following factors are particularly important: (1) the possibility of prejudice to [Chorosevic]; (2) the length of [Appellees’] delay and the possible impact of that delay on judicial proceedings; (3) [Appellees’] reasons for delay, including whether the delay was within [their] reasonable control; and (4) whether [Appellees] acted in good faith.” Sugarbaker, 187 F.3d at 856. The district court relied primarily on two considerations. First, Appellees’ failure to file an answer to the surviving portion of the amended complaint was not a result of bad faith, but instead an inad vertent oversight. Second, Chorosevic did not suffer any prejudice from the delay, because he had notice of Appellees’" }, { "docid": "4857519", "title": "", "text": "113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), that excusable neglect is an “elastic concept” encompassing “situations in which the failure to comply with a filing deadline is attributable to negli genee.” A determination of whether neglect is “excusable” is “at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. at 395, 113 S.Ct. 1489. The relevant factors include: (1) the danger of prejudice to the other party; (2) the length of the delay and potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith. See id. Considering all the relevant facts, the Court finds that plaintiff has shown that his delay in filing a notice of appeal was due to excusable neglect. Defendants argue that they will be “heavily prejudiced by having to spend the time, effort and expense to oppose this frivolous motion and oppose the appeal if Plaintiffs Motion is ultimately granted....” (Defs.’ Opp’n at 6.) This argument is unpersuasive, for if accepted, it would eviscerate the very concept of “excusable” neglect. No neglect would ever be excusable if the prejudice of “having to spend the time, effort and expense” to oppose a motion for extension or to litigate an appeal were dispositive in this context. (See id.) Furthermore, courts in this district have determined that the first two Pioneer Investment Services factors “are of minimal relevance when applied to Rule 4(a)(5)(A)(ii) considering that a related motion can only be considered when it is brought within 30 days after the Rule 4(a)(1) filing deadline.” Anyanwutaku v. Wilson, No. 00-cv-2296, 2006 WL 1663407, at *3 (D.D.C. June 12, 2006) (citing Webster, 270 F.Supp.2d at 14). Defendants also point out that plaintiff received written notice from his former counsel that he had thirty days from December 8, 2012, to file a notice of appeal under Rule 4. (See Defs.’ Opp’n at 1-2; Pl.’s Mot. Ex. 1, at 2; see also PL’s Reply at 1 n. 1.) Plaintiff was thus on notice, bringing the" }, { "docid": "21441589", "title": "", "text": "to file his opposition to the motion to dismiss on the ground that his counsel made a mistake. According to Cohen, counsel misread the- electronic docket and thus did not believe the defendants’ motion to dismiss had been filed properly. While trying to find the motion to dismiss on the electronic docket, Cohen’s counsel clicked the wrong link, and the file he opened included only exhibits, but no motion. Counsel’s assistant made the same mistake, confirming in the mind of Cohen’s counsel his mistaken belief that the defendants had not properly filed the motion to dismiss. By the time counsel realized his error, the time for him to respond had run out. - Rule 6(b) of the Federal Rules of Civil Procedure permits a court to extend deadlines, even after the time to act has expired, if there is good cause' and the party “failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B). Excusable neglect is an equitable concept that considers “all relevant circumstances” surrounding the failure to act. Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993): Generally, “excusable neglect” does not require counsel to have been faultless, and “inadvertence, mistake, or carelessness” can fall within the 'rule. Id. at 388, 113 S.Ct. 1489; 4B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 (4th ed. 2015). But counsel typically must have “some reasonable basis” for not meeting a filing deadline. Wright & Miller, supra, § 1165. To determine whether the district court permissibly exercised its discretion to find counsel’s neglect inexcusable, we consider four factors set forth by the Supreme Court in Pioneer. (1) the risk of prejudice to the other side; (2) the length of the delay and the potential impact on judicial proceedings; (3) the reason for the delay and whether it was within counsel’s reasonable control; and (4) whether counsel acted in good faith. See 507 U.S. at 395, 113 S.Ct. 1489; Yesudian ex rel. United States v. Howard Univ., 270 F.3d 969, 971 (D.C.Cir.2001) (applying the four Pioneer factors)." }, { "docid": "8582220", "title": "", "text": "90 days after the filing of a complaint in a case sought to be maintained as a class action, ... the plaintiff shall move for a certification under Rule 23(e)(1)____” That rule “ha[s] been strictly applied in this Circuit.” Howard v. Gutierrez, 474 F.Supp.2d 41, 53 (D.D.C.2007). As this Court has held, the ninety-day deadline is measured from the filing of the first complaint alleging a class action—not from the subsequent filing of an amended complaint. See id. at 54-55. Plaintiffs filed their motion for class certification on August 8, 2014—nearly five months after filing the initial complaint. Too late by half. But plaintiffs argue that they were not terribly late, and that there was no prejudice—in short, that their errors constitute excusable neglect. As this Court observed in Howard: The determination of whether a party's neglect is excusable is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission. The court must consider the danger or prejudice to the other party, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. Id. at 55-56 (internal quotation marks, citations, and alteration omitted). Here, plaintiffs filed their motion for class certification within thirty days of filing the amended complaint, and within sixty days of the deadline—not a de minimis delay, but hardly an egregious one either. Moreover, plaintiffs acted diligently to file the appropriate motion once they realized their error. Only a week elapsed between defendants’ motion to dismiss and plaintiffs’ motion to certify their class. Cf. Howard, 474 F.Supp.2d at 56-57 (noting, with disapproval, plaintiffs’ decision to wait three months to file an extension of time to move for class certification after defendant’s motion to dismiss raised the untimeliness argument). And defendants have failed to point out any unfair prejudice they have suffered as a result of the delay. They complain of uncertainty regarding the number of plaintiffs, the amount of discovery, and the potential damages faced. See Defs.’" }, { "docid": "9821479", "title": "", "text": "plaintiffs here, was pro se, thus requiring this court to construe Rule 4 “leniently.” Id. at 74. We therefore hold that the district court did not abuse its discretion in dismissing BWXTO for insufficient service of process. D. The district court did not abuse its discretion in denying the plaintiffs’ motion to file an amended complaint out of time 1. Standard of review Rule 6(b) of the Federal Rules of Civil Procedure provides that when a party moves the court to accept a filing after the relevant deadline, the court may do so “where the failure to [file before the deadline] was the result of excusable neglect.” fed. R. Civ. P. 6(b). We review a district court’s determination of excusable neglect, or lack thereof, under the abuse-of-discretion standard. Turner v. City of Taylor, 412 F.3d 629, 649 (6th Cir.2005). Such abuse exists if the district court “relie[d] on erroneous findings of fact, applie[d] the wrong legal standard, misappliefd] the correct legal standard when reaching a conclusion, or ma[de] a clear error of judgment.” Reeb v. Ohio Dep’t of Rehab. and Corr., 435 F.3d 639, 644 (6th Cir.2006). Here, the governing legal standard for excusable-neglect determinations is a balancing of five principal factors: (1) the danger of prejudice to the nonmoving party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, (4) whether the delay was within the reasonable control of the moving party, and (5) whether the late-filing party acted in good faith. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). 2. Discussion As their respective briefs make clear, both parties agree that the district court applied the proper legal standard in evaluating the issue of excusable neglect. In its 10-page order, the district court methodically applied each of the five Pioneer factors to the relevant facts of the case before it, concluding that each factor weighed in favor of the defendants. The plaintiffs simply contend that the court’s conclusion was wrong. In their brief, the plaintiffs" }, { "docid": "5784063", "title": "", "text": "be allowed to file out of time upon a showing of excusable neglect. Fed.R.Civ.P. 6; D.Kan.Rule 6.1. Courts consider four factors to determine excusable neglect: (1) danger of prejudice to the nonmoving party; (2) length of the delay and its potential impact on judicial proceedings; (3) reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith. Mohankumar v. Dunn, No. 97-1555, 1999 WL 1253053, at *1, (D.Kan. Dec.22, 1999) (citing City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir.1994); and Evans v. Caldera, No. 98-2446, 1999 WL 233307, at *2, (D.Kan. Mar.11, 1999)). In this case the defendant has been delayed in completing discovery pending resolution of this motion since November 15, 1999. Discovery has been extended once, in part because of the issues involved in these motions, and the extended discovery deadline is rapidly approaching. The first two factors weigh somewhat against granting the motion. The court finds that the third factor weighs heavily against the plaintiff. Ms. Walls alleges three reasons for delay: (1) her counsel had serious problems with his computer systems, (2) opposing counsel in other matters declined to cooperate with her counsel and filed preemptive motions to compel, and (3) her counsel was extremely busy with this and other cases. The court granted 16 days of extensions for Ms. Walls response, yet it took forty days to get a response or motion before the court. The court acknowledges that the computer problems alleged are serious and disruptive to the practice of law. However, such problems should not be allowed to produce such substantial disruption or delay. The court is charged with the speedy, just and inexpensive determination of every action for every participant. As to the attitudes and actions of opposing counsel in other cases, the court notes that Ms. Walls’s counsel requests extensions of time with relative regularity. Although courts grant requests for extension and motions to compel based on the specific merits of each case, they encourage parties to work together in good faith" }, { "docid": "15269508", "title": "", "text": "a motion to enlarge pursuant to Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure, defendant must still demonstrate that the delay was the result of excusable neglect. The Supreme Court has designated four factors for determining when a late filing may constitute “excusable neglect.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). These factors include: “(1) the danger of prejudice to the [opposing party], (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith.” In re Vitamins Antitrust Class Actions, 327 F.3d 1207, 1209 (D.C.Cir.2003) (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). The determination of whether a party’s neglect is excusable “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer, 507 U.S. at 395, 113 S.Ct. 1489. At least three of the four Pioneer factors favor the defendant. First, as reflected by its consent, plaintiff would not be prejudiced if the Opposition were to be accepted. Second, the length of the delay—approximately two weeks—would not have an impact on judicial proceedings. See, e.g., Cryer v. InterSolutions, Inc., No. 06-cv-2032, 2007 WL 1191928, at *6 (D.D.C. April 20, 2007) (length of delay was “not great” where motion for extension of time to file for class certification was filed 22 days after deadline). Finally, there is no reason to believe that defendant acted in bad faith. c. Fault/Mistake Nevertheless, the remaining Pioneer factor—fault—is “perhaps the most important single factor.” Webster v. Pacesetter, Inc., 270 F.Supp.2d 9, 14-15 (D.D.C.2003) (internal quotations and citations omitted). See also Wilson v. Prudential Fin., 218 F.R.D. 1, 3 (D.D.C.2003) (fault is the “key factor” in excusable neglect analysis). Defendant explains its delay in filing the Opposition as the result of an “inadvertent[ ] mis-calendaring of the due date.” Consent Motion at 1. As was made clear in Pioneer, however, “inadvertence, ignorance of the rules, or mistakes" }, { "docid": "23325145", "title": "", "text": "of the movant, and (4) whether the moving party’s conduct was in good faith.” Pincay, 389 F.3d at 855(citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). Here, the district court found that three of the four Pioneer factors weighed in favor of granting Mendez’s motion: “Respondent concedes that it will not suffer prejudice if the extension is granted. He also admits that petitioner acted in good faith. The delay was only one day — practically the shortest delay possible. It had no impact on judicial proceedings beyond the instant motion.” In focusing on the only factor at issue — the reason for the delay — the district court determined that the reason for the late filing was that Mendez’s counsel relied on the Postal Service to deliver the notice of appeal crosstown on the second day after its deposit in a mailbox. Even though the district court found that a late filing was foreseeable because the Postal Service advises its customers that first-class mail takes one to three days for delivery and that Mendez’s counsel previously had not been diligent in filing papers in this case, it nevertheless concluded that this neglect was excusable. The Warden presents several arguments to support his contention that the district court abused its discretion in granting Mendez an extension of time for filing his notice of appeal. First, the Warden contends that because the delay was not caused by circumstances beyond Mendez’s control, it should not be excused. But the Supreme Court in Pioneer rejected this rigid rule for excusable neglect, applying a broader standard that permitted a finding of excusable neglect even where the filer was in control of the situation that caused the delay. 507 U.S. at 386-95, 113 S.Ct. 1489 (“ ‘[Excusable neglect’ ... is not limited to situations where the failure to timely file is due to circumstances beyond the control of the filer.”). In our en banc decision in Pincay, we applied this broader standard and affirmed the district court’s decision to grant an extension after finding excusable neglect where a paralegal miscalculated the filing deadline — a" }, { "docid": "22442446", "title": "", "text": "Under the terms of the rule, as relevant here, the district court may extend the time for filing a notice of appeal upon motion by a party made within thirty days of the filing deadline and with a showing of excusable neglect. See Fed. R.App. P. 4(a)(5). The question here is whether Lowry can demonstrate excusable neglect. In Fink v. Union Central Life Insurance Co., this Court adopted the “more flexible analysis of the excusable neglect standard” set forth in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), for application to Rule 4(a)(5) cases. Fink, 65 F.3d 722, 724 (8th Cir.1995). In Pioneer, the Supreme Court “conclude[d] that the determination [of whether neglect is excusable] is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer, 507 U.S. at 395, 113 S.Ct. 1489. The Court found those circumstances to include “the danger of prejudice to the [non-moving party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id. For some reason, MDC opted not to discuss all four of the Pioneer factors, or even to discuss the Pioneer standard at all in its brief, and mentions the case only fleetingly in its motion to dismiss. Instead, MDC’s argument focuses only on the reasons that Lowry gave for failing to file a timely notice of appeal. We will assume, then, that MDC is not claiming that any prejudice will result to the company from granting Lowry’s 4(a)(5) motion. Indeed, we discern none, except that final resolution of the case has been postponed. As for the second factor, the delay of one week in filing the original 4(a)(5) motion was minimal. But then it seems that the delay always will be minimal in actual if not relative terms, and the prejudice to the non-movant will often be negligible, since the Rule requires a 4(a)(5) motion to be .filed" }, { "docid": "23325144", "title": "", "text": "Federal Rules of Appellate Procedure, which permits a party to so move no later than thirty days after the expiration of the deadline for filing a notice of appeal and permits the district court to extend the time for filing if the party so moving shows excusable neglect or good cause. Fed. R.App. P. 4(a)(5)(A). On February 8, 2006, the district court found excusable neglect and granted Mendez permission to file a late notice of appeal. The Warden contends that the district court abused its discretion when it concluded that Mendez’s untimely filing of a notice of appeal was excusable neglect. In evaluating whether neglect is excusable, a district court must consider the four factors established by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993): “(1) the danger of prejudice to the non-moving party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the moving party’s conduct was in good faith.” Pincay, 389 F.3d at 855(citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). Here, the district court found that three of the four Pioneer factors weighed in favor of granting Mendez’s motion: “Respondent concedes that it will not suffer prejudice if the extension is granted. He also admits that petitioner acted in good faith. The delay was only one day — practically the shortest delay possible. It had no impact on judicial proceedings beyond the instant motion.” In focusing on the only factor at issue — the reason for the delay — the district court determined that the reason for the late filing was that Mendez’s counsel relied on the Postal Service to deliver the notice of appeal crosstown on the second day after its deposit in a mailbox. Even though the district court found that a late filing was foreseeable because the Postal Service advises its customers that first-class mail takes one to three days for delivery and that Mendez’s" }, { "docid": "20401174", "title": "", "text": "U.S. 380, 395, 113 S.Ct. 1489, 1495, 123 L.Ed.2d 74 (1993). In Pioneer, the Court held that an attorney’s inadvertent failure to timely file a proof of claim can constitute excusable neglect under Bankruptcy Rule 9006(b)(1). Looking to other rules for guidance on the meaning of “excusable neglect,” the Court considered Rule 60(b)(1) and observed that “for purposes of Rule 60(b), ‘excusable neglect’ is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.” Id. at 394, 113 S.Ct. at 1497. The Court identified four factors pertinent to the determination: “the danger of prejudice to the [opposing party], the length of the delay and its potential impact on the judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id. at 395, 113 S.Ct. at 1498. This Court applied the Pioneer factors in Cheney v. Anchor Glass Container Corp., 71 F.3d 848 (11th Cir.1996), holding that the plaintiffs counsel’s late filing of a request for a trial de novo following a nonbinding arbitration award was excusable neglect. The delayed filing resulted from a miscommunication between the plaintiffs lead counsel and his associate who handled the arbitration while the lead counsel was on vacation — each had assumed that the other had filed a demand for trial de novo. Id. at 849. The court held that the district court abused its discretion in failing to find excusable neglect. We noted that the Pioneer factors weighed in favor of excusable neglect because the defendant was not prejudiced by the late filing. Id. at 850. We also observed that although the error was within counsel’s control, the miscommunication was attributable solely to negligence. Id. Finally, there was no indication that the delay was the result of bad faith, i.e., an attempt to gain a tactical advantage through the late filing. Id. In this case, the district court abused its discretion because it did not even consider the Pioneer factors. See Cheney, 71 F.3d at 850. Instead, the district court" }, { "docid": "17221666", "title": "", "text": "it became aware of an October 2013 federal case applying the NBA preemption analysis to state-chartered banks like Arvest. Arvest further states it believed that it would save judicial resources to raise the preemption issue in a supplemental brief, rather than as an affirmative defense in its answer, should an answer have become necessary. The Eighth Circuit has described excusable neglect as “an elastic concept that empowers courts to provide relief where a party’s failure to meet a deadline is caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control.” Kurka v. Iowa Cnty., 628 F.3d 953, 959 (8th Cir.2010) (internal quotation marks omitted) (quoting Chorosevic v. MetLife Choices, 600 F.3d 934, 946 (8th Cir.2010) (reviewing excusable neglect under Fed.R.Civ.P. 6)). “The determination of whether neglect is excusable is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. In determining whether excusable neglect exists, the Eighth Circuit has looked to the following “particularly important” factors: “(1) the possibility of prejudice to the defendant, (2) the length of delay and the potential impact on judicial proceedings, (3) the reason for the delay, including whether the delay was within the party’s reasonable control, and (4) whether the party acted in good faith.” Id. (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 866 (8th Cir .2007)). The Court finds that Arvest has demonstrated excusable neglect for filing untimely its supplemental brief in support of its motion to dismiss. Arvest has explained the reason for its delay, plaintiffs have responded fully to Arvest’s supplemental motion and even filed notices of subsequent authority regarding preemption, and it is in the interest of judicial economy for the Court to consider the preemption arguments raised in Arvest’s supplemental brief. The Court denies plaintiffs’ motion to strike (Dkt. No. 21). The Court cautions Arvest, however, that filing a motion for leave with the proposed filing attached as an exhibit to" }, { "docid": "7541446", "title": "", "text": "pre-trial mediation. Concluding that counsel’s forgetfulness does not constitute excusable neglect, the district court struck Plaintiffs response. The district court subsequently granted summary judgment to Defendant without considering Plaintiffs response. II. DISCUSSION On appeal, Plaintiff does not challenge the merits of the summary judgment decision, instead assigning error only to the district court’s decision to strike her response to the summary judgment motion. Because Plaintiff requested an extension of the response deadline after the deadline had passed, the district court could grant the extension only if her failure to act resulted from excusable neglect. Fed. R.Civ.P. 6(b)(1)(B). “We review a district court’s determination of excusable neglect, or lack thereof, under the abuse-of-discretion standard.” Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir.2006) (citing Turner v. City of Taylor, 412 F.3d 629, 649 (6th Cir.2005)). Such abuse exists if the district court “relied on erroneous findings of fact, applied the wrong legal standard, misapplied the correct legal standard when reaching a conclusion, or made a clear error of judgment.” Id. The determination of excusable neglect is “an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Serv. Co. v. Brunswick Assocs. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). In Pioneer, the Supreme Court set out five factors for courts to balance when determining the existence of excusable neglect: (1) the danger of prejudice to the non-moving party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, (4) whether the delay was within the reasonable control of the moving party, and (5) whether the late-filing party acted in good faith. Nafziger, 467 F.3d at 522 (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). The district court considered the Pioneer factors and concluded they did not show excusable neglect. The court found that only the first factor weighed in favor of Plaintiff in that Defendant was not prejudiced. But the other factors weighed against Plaintiff, the district court concluded, because the delay significantly impacted judicial proceedings, was not excusable, and" }, { "docid": "20475766", "title": "", "text": "filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The determination of whether neglect is excusable “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. at 395, 113 S.Ct. 1489. “[T]he following factors are particularly important: (1) the possibility of prejudice to [Chorosevic]; (2) the length of [Appellees’] delay and the possible impact of that delay on judicial proceedings; (3) [Appellees’] reasons for delay, including whether the delay was within [their] reasonable control; and (4) whether [Appellees] acted in good faith.” Sugarbaker, 187 F.3d at 856. The district court relied primarily on two considerations. First, Appellees’ failure to file an answer to the surviving portion of the amended complaint was not a result of bad faith, but instead an inad vertent oversight. Second, Chorosevic did not suffer any prejudice from the delay, because he had notice of Appellees’ affirmative defenses, including his failure to exhaust administrative remedies, since Appellees pled those defenses in their answers to the first complaint in April 2006. In addition, although the court did not explicitly rely on this consideration, it noted that Chorosevic failed to bring the Appellees’ omission to the court’s attention or to Appellees’ attention until November 2008, which was over six months after the deadline passed. Chorosevic contends that Appellees were required to show a factual basis for their “excusable neglect.” He urges the Court to examine the reasons Appellees gave for missing the deadline instead of accepting their “naked assertion of inadvertent oversight.” According to Chorosevic, Appellees must justify or satisfactorily explain their failure to file an answer to the surviving portion of the complaint. Further, Chorosevic asserts that the court may consider the equitable factors (e.g. prejudice, bad faith, and impact on the proceedings) only if there is an adequate showing of excusable neglect. We disagree. Chorosevic relies on Lowry v. McDonnell Douglas Corp., 211 F.3d 457 (8th Cir.2000), in which the plaintiff" }, { "docid": "5784062", "title": "", "text": "filed its motion to compel discovery responses on November 15, 1999, and Ms. Walls was given an extension of time to respond until December 16. On December 16 and 23, Ms. Walls filed motions to extend her response time till December 23 and 27 respectively. She filed a motion to file out of time on January 20, 2000. The court has not decided any of these motions. For good cause shown, the court exercises its discretion to grant Ms. Walls two motions for extension of time. Each motion was filed within the time allowed. Ms. Walls alleged in her motions that her attorney experienced catastrophic failure of his computer systems, and that demands of the holiday season precluded response in the time allowed. The court is aware of the pressures of the holiday season, and the reliance of law firms upon computers. Therefore the motions are granted. B. Motion to File Response Out of Time Twenty-four days after the extended time expired, Ms. Walls filed a motion to file out of time. A party will be allowed to file out of time upon a showing of excusable neglect. Fed.R.Civ.P. 6; D.Kan.Rule 6.1. Courts consider four factors to determine excusable neglect: (1) danger of prejudice to the nonmoving party; (2) length of the delay and its potential impact on judicial proceedings; (3) reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith. Mohankumar v. Dunn, No. 97-1555, 1999 WL 1253053, at *1, (D.Kan. Dec.22, 1999) (citing City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir.1994); and Evans v. Caldera, No. 98-2446, 1999 WL 233307, at *2, (D.Kan. Mar.11, 1999)). In this case the defendant has been delayed in completing discovery pending resolution of this motion since November 15, 1999. Discovery has been extended once, in part because of the issues involved in these motions, and the extended discovery deadline is rapidly approaching. The first two factors weigh somewhat against granting the motion. The court finds that the third factor weighs heavily against" }, { "docid": "16264447", "title": "", "text": "enumerated include: (1) the danger of prejudice to opposing parties; (2) length of delay in judicial proceedings and its impact; (3) the reason for the delay, including whether it was in the control of the late-filer; and (4) whether the late-filer acted in good faith. The Supreme Court found excusable neglect to be present because the deadline for filing claims in Pioneer was not made a conspicuous part of the notice sent to creditors and that a claims deadline such as the deadline at issue was “outside the ordinary course in bankruptcy cases.” However, the Court stated that in considering the issue of excusable neglect, “we give little weight to the fact that counsel was experiencing upheaval in his law practice at the time of the bar date.” Ms. Lang has not cited, and the Court in conducting its own research has been unable to locate, a single case that stands for the proposition she asks us to adopt: namely, that the failure to comply with the deadline for the filing of a notice of appeal due to the press of other business constitutes excusable neglect. Virtually all of the published decisions on the issue, both pre-and post-Pioneer, reach the opposite conclusion. We believe that the language contained in Pioneer to the effect that “upheaval” in a law practice is not probative of excusable neglect precludes Ms. Lang’s reliance upon Pioneer. The only basis set forth in the Extension Motion to justify Ms. Lang’s neglect in this matter was the press of other business. However, in the brief that was submitted to this Court, Ms. Lang argues that she will be prejudiced if the Extension Motion is not allowed because she will be unable to prosecute her appeal. Ms. Lang may be correct, but regardless, dismissal of an appeal is not the type of prejudice that will support a finding of excusable neglect. If it were, then all neglect could be considered excusable, because every finding that an appeal has not been timely filed results in the termination of the appeal. The bankruptcy court followed established precedent and did not" }, { "docid": "17085173", "title": "", "text": "of excusable neglect. Fed.R.Civ.P. 6(b)(1)(B) (“When an act may or must be done within a specified time, the court may, for good cause, extend the- time ... on motion made after the time has expired if the party failed to act because of excusable neglect”). See Howard, 474 F.Supp.2d at 55-56. In deciding whether to grant a motion for an extension of time on the ground of excusable neglect, the' Court may consider (1) “the danger of prejudice to the [other party],” (2) “the length of delay and its potential impact on judicial proceedings,” (3) “the reason for delay, including whether it was within the reasonable control of the movant,” and (4) “whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). The determination of whether neglect is excusable “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. “Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect, it is clear that ‘excusable neglect’ under Rule 6(b) is a somewhat elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant.” Id. at 392, 113 S.Ct. 1489 (internal quotations omitted). The Court finds that Plaintiffs’ failure to request an extension of time to file a motion for class certification constitutes excusable neglect. First, Defendants have suffered no prejudice as a result of the delay. While WMATA reserved the right to raise a timeliness objection, it clearly still contemplated the future filing of a class certification motion. See Meet and Confer Statement at 6-7 (WMATA’s position that discovery should be limited to issues related to class certification), 10 (WMATA’s proposed schedule for class discovery and motions on class certification). And although the parties disagree on its exact scope, they concur that some discovery is warranted before a class certification motion should be filed. At base, WMATA’s argument is an attempt to strike class allegations not because Plaintiffs have failed to seek class" }, { "docid": "19142946", "title": "", "text": "the merits of the Rule 9024 Motion, the Court did so, finding that Jackson had not proven excusable neglect in failing to file the Mediation Statement by the deadline. As Jackson points out, “Congress plainly contemplated that the courts would be permitted to accept late filings caused by inadvertence, mistake, or carelessness, not just those caused by intervening circumstances beyond the party’s control.” “[E]xcusable neglect is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.” “The determination as to whether neglect is excusable is an equitable one, taking into account all relevant circumstances surrounding the party’s omission.” However, relief under Rule 60(b) is an extraordinary remedy. Factors to consider in this determination include (1) the danger of prejudice to the debtor; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith. In sum, the Bankruptcy Court found that granting the Rule 9024 Motion posed no danger of prejudice to the Debtor because doing so would simply permit Jackson to mediate her claim, which was the process that the Debtor preferred for the personal injury claimants. The Court also found that the length of the delay, less than ninety days from the entry of the PI Claims Order to the filing of the Rule 9024 Motion, was minimal, and that Jackson had acted in good faith, all factors weighing in favor of granting the Rule 9024 Motion. However, the Court also found that allowing Jackson to prevail on the Rule 9024 Motion by making essentially the same argument made in the Motion to Reconsider would have a negative impact on judicial economy. In other words, the Court found that it would be inherently unfair to the Debtor to give Jackson a second try at arguing that the Jackson Claim should not be disallowed. Further, noting that the third factor, i.e., the reason for the delay, is the most important factor considered by the" }, { "docid": "17221665", "title": "", "text": "Arvest moves to dismiss plaintiffs’ first amended complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. II. Motions To Strike Arvest’s amended and supplemental brief in support of its motion to dismiss raises an argument that was not asserted in Arvest’s original motion to dismiss or brief in support — Arvest’s assertion that the National Banking Act (“NBA”), 12 U.S.C. § 21 et seq., and Office of the Comptroller of the Currency (“OCC”) regulations preempt plaintiffs’ breach of contract claim. Plaintiffs move to strike Arvest’s supplemental brief as untimely because it was filed almost a month after the deadline for Arvest to file a responsive pleading to plaintiffs’ first amended complaint. Plaintiffs further argue that the supplemental brief is procedurally improper in that Arvest did not seek leave of the Court to file its supplemental brief and did not attempt to show excusable neglect for an untimely filing as required by Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure. Arvest responds that, after filing its motion to dismiss, it became aware of an October 2013 federal case applying the NBA preemption analysis to state-chartered banks like Arvest. Arvest further states it believed that it would save judicial resources to raise the preemption issue in a supplemental brief, rather than as an affirmative defense in its answer, should an answer have become necessary. The Eighth Circuit has described excusable neglect as “an elastic concept that empowers courts to provide relief where a party’s failure to meet a deadline is caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control.” Kurka v. Iowa Cnty., 628 F.3d 953, 959 (8th Cir.2010) (internal quotation marks omitted) (quoting Chorosevic v. MetLife Choices, 600 F.3d 934, 946 (8th Cir.2010) (reviewing excusable neglect under Fed.R.Civ.P. 6)). “The determination of whether neglect is excusable is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. In determining whether excusable neglect exists, the Eighth Circuit has looked to the following “particularly important” factors: “(1) the possibility of prejudice to the" } ]

[ { "docid": "22683738", "title": "", "text": "BETTY B. FLETCHER, Circuit Judge. Petitioner Usha Bhasin, a native and citizen of India, petitions for review of the Board of Immigration Appeals’s (“the Board”) denial of her motion to reopen her proceedings following its decision dismissing her appeal of the Immigration Judge’s (“IJ”) denial of applications for asylum and withholding of removal. Because we conclude that Bhasin established prima facie eligibility for withholding of removal through evidence not available at the time of the original hearing, and because the Board otherwise abused its discretion in denying the motion to reopen, we grant the petition for review and remand to the Board with instructions to either grant relief or to remand to the Immigration Judge for a hearing on the newly presented evidence. We also hold that it was error for the Board to deny the motion as a matter of discretion under the fugitive disentitlement doctrine. FACTUAL BACKGROUND & PROCEDURAL HISTORY A. Facts Presented at the Hearing Petitioner Bhasin appeared before an IJ on May 11, 1999, and provided testimony supplementing her application for asylum, together establishing the facts set forth below. Because neither the IJ nor the Board made any adverse credibility finding, we accept the petitioner’s factual contentions as true. Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004); Navas v. INS, 217 F.3d 646, 652, n. 3 (9th Cir.2000). Usha Bhasin, a 63-year-old native and citizen of India, entered the United States on a B-l non-immigrant visa on February 23, 1998, and applied for asylum and withholding of removal several months later. Her claims for relief are founded on her fears that she will be attacked and possibly killed by the Islamic militant group known as the “Jammu and Kashmir Liberation Front” (“JKLF”), because of her eldest son’s role as a government “inspector” in the Border Security Force (“BSF”). Several members of her family have already disappeared, and she claims that this persecution is on account of membership in her familial social group. Bhasin’s son Yogesh Kumar joined the BSF in 1991 and was posted on the border with Pakistan in the state of Jammu and" } ]

[ { "docid": "22139669", "title": "", "text": "a Sikh homeland of Khalistan. After his final arrest, he went into hiding. His wife and father were harassed and arrested because, while in hiding and going “to different places,” Singh did not report to the police in accord with a condition of his last release from detention. In support of his applications for relief, Singh provided documentary evidence, including an affidavit from his father. After Singh’s removal hearing, IJ Anna Ho issued a written decision in which she made an explicit adverse credibility determination, specifying four grounds: 1) Singh omitted two details concerning his first arrest that were recounted in his father’s supporting affidavit: a false charge of spousal abuse and a promise he made when he was released that he would not associate with Sikh separatists. 2) There were discrepancies between two sets of arrest dates, those that Singh reported to an asylum officer in his asylum interview and those contained in Singh’s testimony. 3) There was an inconsistency concerning Singh’s role in a 1992 election boycott between Singh’s father’s affidavit and Singh’s testimony. 4) There was a conflict between the father’s affidavit and Singh’s testimony concerning when Singh’s last arrest took place. As an alternative to the adverse credibility determination based on these four grounds, the IJ held that “even if assuming arguendo, the respondent’s testimony to be true, the conditions of India have changed since he left the country.” The IJ did not make an explicit finding about whether Singh’s testimony, if credible, established past persecution. Singh appealed to the BIA. Singh’s attorney provided explanations in the brief for the grounds relied upon by the IJ in making her adverse credibility determination, stating that: [Singh] did not mention the false charge of spousal abuse because it was just that [ — ] a false charge created by the police to embarrass the respondent.... The respondent argues that he did not mention the charge because it did not deserve to be mentioned. ... Concerning the promise not to associate with the Khalistan movement, the respondent also did not consider it worthy of mention. It was a promise" }, { "docid": "22670118", "title": "", "text": "if he returned to Egypt. Malty, 381 F.3d at 944. Likewise, in Bhasin v. Gonzales, we also required previously unavailable evidence to be material to the petitioner’s claim. There, while the IJ had found the petitioner to have established a well-founded fear of future persecution, it denied asylum eligibility because the persecution was not “on account of’ the petitioner’s imputed political opinion or membership in a particular social group, that group being her family. Bhasin, 423 F.3d at 982. The BIA affirmed, finding that “other close members of the [petitioner’s] family are living in India without difficulty. The [Islamic militant group] has not persecuted the respondent’s brother, two daughters, or one daughter-in-law, the wife or her missing eldest son.” Id. In granting the petition for review, we held that “later-discovered evidence presented in the motion to reopen rebuts this critical finding.” Id. We explained that the petitioner presented new, previously unavailable evidence that her two daughters and son-in-law had received death threats, violent verbal threats, and had subsequently disappeared while the appeal before the Board was pending. Id. at 983. The evidence Najmabadi points to lacks the materiality we required in Malty and Bhasin. Rather, it simply recounts generalized conditions in Iran that fail to demonstrate “that her predicament is appreciably different from the dangers faced by her fellow citizens.” Singh v. INS, 134 F.3d 962, 967 (9th Cir.1998) (alterations and internal quotation marks omitted). Najmabadi points to the affidavit accompanying her motion to reopen as evidence of her change in particular circumstances. There, she asserts that she “will be active in trying to change Iran and the situation for women[,]” and that she “want[s] to make sure Iranian women get to wear [the clothes she designs] one day.” The Board is required to accept as true the facts stated in Najmabadi’s affidavit unless they are inherently unbelievable. Limsico v. INS, 951 F.2d 210, 213 (9th Cir.1991). However, there is no indication that the Board failed to credit Najmabadi’s affidavit, as it characterized her motion as premised on her “direct and imputed political opinion, and the fact that she is" }, { "docid": "22079985", "title": "", "text": "claims that the record before us, which includes the arguments in the brief that the BIA rejected as untimely, does not contain anything that would have caused the BIA to alter its adverse credibility finding. Because the BIA’s decision is not supported by substantial evidence, and the evidence in fact compels us to find that Singh’s testimony before the IJ was credible, we grant Singh’s petition. We remand this matter to the BIA for a determination, accepting Singh’s testimony as credible, whether Singh is otherwise eligible for asylum, and for the exercise of discretion on his asylum application. I Singh provides a credible account of persecution on political and religious grounds. Singh fled his native India after suffering persecution due to his support of religious and political rights for the Sikh minority in the Punjab province of India. He entered the United States without inspection in November of 1995 and filed an application for asylum. On September 26, 1996, the INS commenced deportation proceedings against him. In his asylum application, and during seven subsequent hearings before an IJ held over the course of more than four years, Singh described his activism on behalf of the Sikh separatist movement in Punjab, including his membership in the A1 India Sikh Student Federation (“AISSF”) and his support of the Akali Dal Party. At the age of nineteen, Singh became involved with the AISSF after an attack on the Sikh Golden Temple, which was believed to be the work of Indian security forces. In 1988, Singh was arrested during an AISSF rally that he organized in Jallhandar. He was held in jail for fifteen days, while being beaten and tortured by the police. He was never charged with a crime nor brought before a judge. In January of 1992, Indian police again arrested Singh without a warrant. He was held for twenty days, beaten with a bamboo stick, punched, kicked, and threatened with death if he did not end his affiliation with the AISSF. The police told him he was arrested because of his association with Sikh militants, even though he adamantly denied any" }, { "docid": "22386716", "title": "", "text": "by the Indian security forces for his alleged association with the Sikh separatist movement.” That an alien has been subject to detention and beatings because of an imputed political opinion makes out a plausible claim for eligibility for asylum and withholding of removal. See, e.g., Salaam v. INS, 229 F.3d 1234, 1240 (9th Cir.2000) (arrest and torture may amount to persecution); Prasad v. INS, 101 F.3d 614, 617 (9th Cir.1996) (repeated beatings when jailed may amount to persecution); Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir.1992) (imputed political opinion is valid basis for eligibility for asylum). In finding a plausible ground for relief in Singh’s case, we, of course, express no opinion as to whether the BIA should ultimately reverse the IJ’s denial of Singh’s application. We merely hold that Singh has presented a claim that could plausibly succeed on the merits. The presumption of prejudice arising from Singh’s former attorney’s failure to file an appellate brief has not therefore been rebutted. In holding that Singh had not shown prejudice arising from his counsel’s failure to file an appellate brief, the BIA thus abused its discretion. Conclusion We hold that Singh filed a motion to reopen rather than a motion to reconsider, and that the time limit for filing that motion was equitably tolled because of the ineffective assistance of his former counsel. We further hold that in its denial of Singh’s motion to reopen, the BIA improperly relied on its previous statement purporting to affirm the dismissal of Singh’s appeal on the merits, and because the correctness of its earlier decision on the merits was not before it, the BIA improperly required Singh to submit a brief on the merits as part of his motion to reopen. Finally, we hold that in his motion to reopen Singh has shown prejudice resulting from his former counsel’s failure to file a brief. We therefore conclude that the BIA abused its discretion in denying Singh’s motion to reopen. We GRANT Singh’s petition for review and REMAND to the BIA with instructions to grant Singh’s motion to reopen. . The government does" }, { "docid": "22044989", "title": "", "text": "OPINION KLEINFELD, Circuit Judge: We address the effect of lying in an asylum application and to an asylum officer on an adverse credibility finding. FACTS Harminder Singh is a native and citizen of India. He, his parents, and his sisters went to Canada, where they lived for two and a half years. They applied unsuccessfully for asylum in Canada. After the denial, they somehow entered the United States “without inspection,” and Singh applied for asylum here. The Immigration Judge (IJ) denied his claim, the Board of Immigration Appeals (BIA) affirmed without opinion, and Singh petitions for review. We deny the petition. Singh’s application for asylum in the United States, which he swore to be true, was, as he has subsequently acknowledged, a lie. He answered “no” to the question asking whether he had ever filed for or been granted or denied asylum by any other country, and claimed to have resided in India during the two and a half years he actually lived in Canada. He submitted numerous documents with the application, including a sworn affidavit stating that the affiant knew Singh’s whole family was active in Sikh politics and he, his father, and his mother had been arrested several times, a statement by an Indian lawyer alleging the same thing, and a hospital certification indicating that Singh had been treated for a week for “multiple blunt injuries on [his] whole body.” Singh subsequently admitted that all these documents were fake, he was never arrested, his mother was never arrested, and Singh had been in Canada at the time of the supposed medical treatment in India. The political persecution Singh claimed in his asylum application was for Sikh activism. He claimed that he, his father, and his mother had all been arrested repeatedly because of the family’s participation in Sikh politics. The police, he said, had tortured both him and his father in the past and had continued their persecution until he left India in 2000. Subsequently, he admitted that he was in Canada from 1997 on, his mother had never been arrested, and Singh himself had never been arrested," }, { "docid": "19914871", "title": "", "text": "motion, they requested a stay of their voluntary departure period. The BIA denied the motion to reopen on the basis that it was number-barred. It also concluded that it would not exercise its sua sponte authority to reopen the case, and, finally, that the voluntary departure period would not be stayed. The petition for review of the BIA order is now before us. II. ANALYSIS The denial of a motion to reopen is a final administrative decision subject to review by this court. See Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir.2004). We review questions of law presented by a denial of a motion to reopen de novo. See Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). We do not have jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen the case. See Toufighi v. Mukasey, 538 F.3d 988, 993 n. 8 (9th Cir.2008). A. The BIA should adequately consider whether petitioner’s motion is number-barred A motion to reopen “is a form of procedural relief that asks the [BIA] to change its decision in light of newly discovered evidence or a change in circum stances since the hearing.” Dada v. Mukasey, 128 S.Ct. at 2315 (internal quotation marks omitted). Such a motion must “state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). The BIA will not grant the motion unless it determines that “evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing....” 8 C.F.R. § 1003.2(c)(1). In addition, aliens seeking reopening to apply for discretionary relief must show that they have a prima facie case of eligibility for relief and either that they did not have an opportunity to apply for such relief in the former hearing or that the relief is sought on the basis of circumstances that have arisen subsequent to the hearing. Id.; INS v. Wang, 450 U.S. 139, 141, 101" }, { "docid": "22401913", "title": "", "text": "OPINION MOORE, Circuit Judge. Petitioner Parmdip Singh (“Singh”) petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) decision to deny Singh’s claims for asylum and withholding of removal under the Immigration and Nationality Act (“INA”) and for relief under the Convention Against Torture. Specifically, Singh asserts that the IJ erred in finding his testimony incredible and in refusing to permit an expert witness to testify. Although we DENY the petition for review of the BIA’s decision with respect to Singh’s INA-based claims for asylum and withholding of removal, the IJ’s failure to make a finding as to Singh’s credibility regarding his allegations of torture requires us to VACATE the judgment of the Board of Immigration Appeals with respect to Singh’s Convention Against Torture claim and REMAND for further proceedings. I. BACKGROUND Singh is a Sikh who formerly lived in Bhila, a village in the Punjab province of India. Singh’s father served as head (“sarpanch”) of Bhila for fifteen years and owned a sixty-five acre dairy farm and some smaller holdings in other cities. Singh claims that he was a nationally-known university, and later professional, wrestling champion. In the mid-1980s, tensions developed in Punjab between the government and Sikh separatists who sought to establish the independent state of Khalistan. While it appeal's that Singh and his father may have supported the Khalistan independence movement generally, Singh’s testimony suggests that they were not members or willing supporters of the Khalistan Liberation Front (“KLF”), a Sikh separatist group that used violent methods in advancing its cause. According to Singh, the KLF had many supporters in Bhila, and the KLF would frequently come to his family’s home, demanding money, food, and shelter. In 1984, approximately two weeks after Indira Ghandi was assassinated by Sikh extremists, the police arrested Singh, apparently believing that he was a KLF supporter. Singh claims that he was imprisoned for eighteen days, during which he was interrogated, stripped, and beaten. According to Singh, he was thrown to the ground on his stomach, police jumped on his back, and his hands were" }, { "docid": "9050276", "title": "", "text": "EDITH H. JONES, Circuit Judge: Petitioner Maninder Singh Ghotra challenges an order by the Board of Immigration Appeals (\"BIA\") denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (\"CAT\"). Upon reviewing the record, we AFFIRM the BIA's decision. BACKGROUND Ghotra is a native and citizen of India. After conceding removability before an Immigration Judge (\"IJ\"), Ghotra applied for asylum, withholding of removal, and relief under CAT. Ghotra claimed that he feared persecution in India based on his Sikh faith and his membership in the Shiromani Alali Dal (Amritsar) political party (i.e. , the \"Mann Party\"). Specifically, he alleged that members of a rival political party had severely beaten him and threatened his life because of his affiliation with those groups. In support, Ghotra provided live testimony, affidavits from family and friends, an Indian newspaper article reporting that Ghotra had been attacked by members of a rival political party in August 2012, a doctor's note stating that Ghotra had been hospitalized for internal injuries in August 2012, and country conditions reports that documented the general hostility in India toward Sikhs and the Mann Party. After finding that Ghotra was not credible, the IJ denied relief. The BIA affirmed on that basis, citing inconsistencies between Ghotra's asylum application, in-person testimony, and affidavits submitted by his parents and a family friend. Ghotra challenges the BIA's decision that he is not eligible for relief, claiming: (1) the BIA erred in its credibility determination, and (2) the BIA erred by failing to explicitly address documentary evidence that corroborates portions of his narrative. STANDARD OF REVIEW Because the BIA \"issued its own opinion and elaborated on its own reasoning,\" this court will confine its review to the BIA opinion and will not review the underlying IJ decision. Orellana-Monson v. Holder , 685 F.3d 511, 517 (5th Cir. 2012). The BIA's factual findings are reviewed for substantial evidence. Singh v. Sessions , 880 F.3d 220, 224 (5th Cir. 2018). Thus, this court will not reverse an adverse credibility determination \"unless ... the evidence is so compelling that no reasonable factfinder\" could" }, { "docid": "22461170", "title": "", "text": "PER CURIAM. Surinder Singh, a citizen and national of India, petitions for review of a March 21, 2003 order of the Board of Immigration Appeals (“BIA”) affirming a March 30, 2001 order of an immigration judge (“IJ”) rejecting Singh’s applications for asylum, 8 U.S.C. § 1158(b), and withholding of removal, 8 U.S.C. § 1231(b)(3). Singh entered the United States without inspection in August 1996, and removal proceedings were commenced against him in November 1997. Conceding removability, Singh sought asylum, withholding of removal and, in the alternative, voluntary departure. Singh alleged that he was twice detained by Indian authorities because he is an adherent of the Sikh religion and because he campaigned on behalf of the Sikh separatist political party Akali Dal Mann (“ADM”); during the second of those two periods of detention, he was allegedly beaten. Singh claimed that after the police came to his home and sought to detain him again — unsuccessfully because he was not home at the time — he left and traveled to the United States. According to Singh, following his departure, unwitting Indian authorities continued to visit his family’s home in attempts to detain him. After holding a hearing on the merits of Singh’s applications on March 30, 2001, the IJ made an adverse credibility finding against Singh, denied Singh’s applications for asylum and withholding of removal and granted Singh’s application for voluntary departure. On appeal, the BIA summarily affirmed the IJ’s order. “Where, as here, the BIA has affirmed the IJ’s decision without an opinion, we review the IJ’s decision directly under a standard of ‘substantial evidence.’ ” Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 150 (2d Cir.2006); see also 8 U.S.C. § 1252(b)(4)(B) (providing that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). We engage in an “ ‘exceedingly narrow’ ” review, Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999) (quoting Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2d Cir.1993)), that involves “looking] to see if the IJ has pro vided ‘specific, cogent’ reasons for" }, { "docid": "22418591", "title": "", "text": "OPINION McKEOWN, Circuit Judge. Mahinder Singh, also known as Mohin-der Singh, a native and citizen of Punjab, India, petitions for review of a decision by the Board of Immigration Appeals. The Board denied Singh’s application for asylum and withholding of deportation on the basis of the Immigration Judge’s adverse credibility determination. In particular, the Board found that Singh’s testimony was not credible because it was inconsistent with information he gave during his airport interview. The airport interview, however, was conducted through an unofficial translator who did not even speak Singh’s own language. We conclude that this credibility finding and the Board’s other misgivings about Singh’s testimony are not supported by substantial evidence. Accordingly we grant the petition and remand for further proceedings. Background Singh, who claims to have been a Sikh since birth, owned and operated a tractor repair shop in Noormahal, Punjab, for twenty years before he fled India in 1993. Singh supported his parents, wife, son, and younger brother, Surjit, with the income derived from his shop and a farm that he owned. While hiding from authorities in New Delhi, Singh arranged the sale of his business to finance his escape from India to the United States. With the help of an “agent,” Singh departed India and arrived in New York in March 1993. He left behind his wife and teenage son, who both still live in India. In the years leading up to Singh's escape, conditions in Nbormahal and the Punjab in general were anything but normal. Although Sikhs comprise 60 percent of Punjab’s population, “fear of domination by India’s Hindu majority and economic concerns have fueled discontent and strife” which led to the formation of several Sikh separatist movements. U.S. DepaRtment Of State, India: Comments on Country Conditions and Asylum Claims, at 4 (February 1994). Singh’s brother, Surjit, was a member of one such, ostensibly non-violent movement, the All India Sikh Student Federation (“AISSF”) whose goal was the formation of an independent Sikh state of Khalistan. The governing political party in 1992, the Congress Party, did not support the AISSF or the creation of an independent" }, { "docid": "22365362", "title": "", "text": "PER CURIAM. Petitioner Varun Goel, a native and citizen of India, petitions for review of his final order of removal. He challenges the adverse credibility finding in the Immigration Judge’s decision that was summarily affirmed by the Board of Immigration Appeals. He also challenges the BIA’s later denial of a motion to reopen that was supported primarily by polygraph examination results. The case presents an issue of first impression regarding the use of polygraph results in motions to reopen removal decisions. We agree with the BIA that polygraph evidence provides no adequate basis for reopening because it is not evidence that was previously unavailable within the meaning of the applicable regulation. 8 C.F.R. § 1003.2(c). Moreover, in this case, the original negative credibility finding was supported by substantial evidence. We therefore deny the petition. BACKGROUND Goel ascribes to the Nirankari faith, a minority religious group in India. He claims to have been persecuted in India, on account of his religious beliefs, by Sikh militants as well as by police officials, all of whom are allegedly hostile to those identifying as Nirankari. After entering the United States on a nonimmigrant visa and overstaying its terms, Goel was placed in removal proceedings. He conceded re-movability, and applied for asylum, withholding of removal, and relief under the Convention Against Torture. The IJ denied all applications for relief, primarily on the basis of a negative credibility finding, concluding that Goel’s testimony materially contradicted the documentary evidence in several ways. For example, Goel testified that on one occasion, Sikh militants fired upon him and his family with heavy rounds of ammunition in a drive-by shooting at their home. A press report, however, submitted by Goel in support of his application, was not consistent with Goel’s testimonial version of the event. The report described Goel and his father as having been physically beaten outside their home. It described the assailants as having fired into the air in a show of intimidation as they ran off to their vehicle. Goel also testified that he was not injured in the attack, but this too was inconsistent with the" }, { "docid": "22413060", "title": "", "text": "political belief. The IJ added in closing: Because the decision to grant or deny asylum is discretionary in nature, the Court will state for the record, in the event of an appeal, that if the Court had found that the applicant met the statutory criteria for asylum the Court would have found that asylum was merited as a matter of discretion. Singh appealed the IJ’s decision to the BIA. In February of 1993, the BIA dismissed Singh’s appeal in a short opinion in which it agreed with the IJ that Singh had not demonstrated past persecution or a well-founded fear of persecution on account of political belief. Specifically, the BIA found: there is no persuasive evidence that the mistreatment suffered by the applicant at the hands of the Indian police was on account of his political opinion or the mere fact that he was a “Sikh”. He did not show that the police action extended beyond an investigation of and reaction against those thought, rightly or wrongly, to be militants seeking the violent overthrow of the government. The BIA did not disturb the IJ’s favorable credibility finding. Additionally, the BIA held that even if Singh had established past persecution it would deny him asylum under its discretionary power “in view of the absence of a threat of persecution throughout India and the factual circumstances of his case.” Having exhausted his administrative remedies, Singh petitioned for writ of habeas corpus, and the district court issued an order granting the petition. The district court reviewed de novo the BIA’s treatment of the issues involved and, following the court’s earlier opinion in a Sikh deportation case, Singh v. Ilchert, 801 F.Supp. 313 (N.D.Cal.1992), found that the BIA erred as a matter of law in holding that Singh had not established persecution on account of political opinion. The district court concluded that Singh had established statutory eligibility for asylum. The district court further found that the BIA abused its discretion in improperly allocating the burden of proof of establishing a likelihood of future persecution in other parts of India to Singh. The court remanded" }, { "docid": "22139668", "title": "", "text": "Opinion by Judge BERZON; Concurrence by Judge LEAYY BERZON, Circuit Judge. Jarnail Singh, a native and citizen of India, entered the United States without inspection in June 1994. He applied for asylum in November 1996, citing persecution by the Indian police because he supported Sikh separatism. The Immigration Judge (“U”) denied Singh’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), after making an adverse credibility determination. The Board of Immigration Appeals (“BIA”) streamlined Singh’s appeal and affirmed “the results of the decision below” pursuant to 8 C.F.R. § 1003.1(e)(4) (2002). We review the IJ’s decision as the final agency determination, see Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003), grant the petition for review, and remand. BACKGROUND Singh’s asylum application and testimony in support of his claims for relief from removal, taken together, stated the following: Singh was an active supporter of the Akali Dal Mann party and the All India Sikh Student Federation. On four occasions, the Indian police persecuted him because of his advocacy for a Sikh homeland of Khalistan. After his final arrest, he went into hiding. His wife and father were harassed and arrested because, while in hiding and going “to different places,” Singh did not report to the police in accord with a condition of his last release from detention. In support of his applications for relief, Singh provided documentary evidence, including an affidavit from his father. After Singh’s removal hearing, IJ Anna Ho issued a written decision in which she made an explicit adverse credibility determination, specifying four grounds: 1) Singh omitted two details concerning his first arrest that were recounted in his father’s supporting affidavit: a false charge of spousal abuse and a promise he made when he was released that he would not associate with Sikh separatists. 2) There were discrepancies between two sets of arrest dates, those that Singh reported to an asylum officer in his asylum interview and those contained in Singh’s testimony. 3) There was an inconsistency concerning Singh’s role in a 1992 election boycott between Singh’s father’s affidavit and Singh’s" }, { "docid": "22413052", "title": "", "text": "OPINION SCHROEDER, Circuit Judge: Petitioner-appellee Harpinder Singh is a Sikh who attempted to enter this country illegally from India. He filed a habeas corpus petition in district court after the Board of Immigration Appeals (“BIA”) deemed him excludable and denied his applications for asylum pursuant to 8 U.S.C. §§ 1101(a) & 1158(a) and withholding of deportation pursuant to 8 U.S.C. § 1253(h). The district court held that Singh had established that he had suffered past persecution on account of political opinion within the meaning of the applicable statutes and Ninth Circuit case law and remanded to the BIA for further proceedings. Two principal questions are presented in the government’s appeal. The first is whether the district court erred when it rejected the BIA’s position that a person who suffered torture at the hands of police, as a result of his suspected association with separatist Sikh militants, had not suffered persecution on account of political opinion within the meaning of 8 U.S.C. § 1101(a)(42)(A). The second is whether the BIA violated applicable law when it required the applicant to establish a fear of country-wide persecution. The second issue has recently been decided adversely to the government in Singh v. Moschorak, 53 F.3d 1031, 1034 (9th Cir.1995). We have jurisdiction under 28 U.S.C. § 2253 and affirm the district court’s holding that under the correct legal standards, Singh showed a well-founded fear of persecution on account of political opinion and thus is eligible for asylum consideration by the BIA. We further hold that Singh has established a “clear probability” of future persecution and has thus met the stricter standard for mandatory withholding of deportation. I. FACTUAL AND PROCEDURAL BACKGROUND The facts of Singh’s ease are drawn from the district court’s statement of facts in its order granting Singh’s petition for habeas corpus, which in turn is based on Singh’s testimony before the Immigration Judge (“IJ”). The IJ expressly found the material elements of that testimony credible. Petitioner Harpinder Singh is a 24-year-old native and citizen of India, who fled that country and attempted to enter the United States at Los Angeles International" }, { "docid": "22619729", "title": "", "text": "WARDLAW, Circuit Judge: Balbir Singh (“Singh”) petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal from an Immigration Judge’s denial, of his motion to reopen deportation proceedings held in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1105a (1996). Because the BIA erred when it relied upon newly-created evidentiary standards in dismissing Singh’s appeal, we grant the petition. I. Singh, a 38-year-old native and citizen of India, entered the United States without inspection on August 8, 1993. On January 14, 1994, Singh filed an application for asylum claiming persecution based on religion, membership .in a particular social group, and political opinion. Singh'asserted he is “a devout follower of the Sikh faith” and an active member of the Akali Dal political party. Singh’s- declarations described numerous instances of violence and persecution by Indian police authorities and “anti-Sikh antagonists.” The asylum officer denied the asylum application. An order to show cause issued on February 8, 1996, alleging that Singh was de-portable. Singh was ordered to appear before an immigration judge on June 19, 1996. Singh did not appear at his asylum hearing. The Immigration Judge ruled that because Singh had received notice, and a reasonable opportunity to be present, and had not presented any cause for his absence, the hearing could proceed in absen-tia. After hearing evidence presented by the INS, the Immigration Judge found Singh to be deportable. On September 26, 1996, Singh filed a timely motion to. reopen'his deportation hearing. See 8 U.S.C. § 1252b(c)(3)(A) (1996) (motion to reopen deportation proceedings held in absentia must be filed within 180 days). In support of his motion to reopen, Singh declared' that he “tripped accidently, in the home of his friend Par-deep Singh,” twisted his foot so severely that he could not go to work, and “remained confined to bed for two weeks.” Singh’s sworn,statement also asserted that he could not afford to see a doctor “due to financial strain,” but that he took Tylenol caplets for pain and his friend massaged his injured foot with oil. Singh also submitted a corroborative declaration from Pardeep Singh," }, { "docid": "22413053", "title": "", "text": "the applicant to establish a fear of country-wide persecution. The second issue has recently been decided adversely to the government in Singh v. Moschorak, 53 F.3d 1031, 1034 (9th Cir.1995). We have jurisdiction under 28 U.S.C. § 2253 and affirm the district court’s holding that under the correct legal standards, Singh showed a well-founded fear of persecution on account of political opinion and thus is eligible for asylum consideration by the BIA. We further hold that Singh has established a “clear probability” of future persecution and has thus met the stricter standard for mandatory withholding of deportation. I. FACTUAL AND PROCEDURAL BACKGROUND The facts of Singh’s ease are drawn from the district court’s statement of facts in its order granting Singh’s petition for habeas corpus, which in turn is based on Singh’s testimony before the Immigration Judge (“IJ”). The IJ expressly found the material elements of that testimony credible. Petitioner Harpinder Singh is a 24-year-old native and citizen of India, who fled that country and attempted to enter the United States at Los Angeles International Airport without proper documentation in September, 1991. Singh was born in Malpur, in the District of Hashpur, in the State of Punjab. Before leaving India, he lived in the State of Punjab and worked with his family farming their land. Singh is a member of the Sikh religion. Although he is not a member of any political party, he supports the movement for formation of an independent Sikh state, Khalistan, through peaceful means. On April 23, 1991, seven armed members of a militant Sikh separatist organization, the Bhindrawal Tiger Force, visited Singh’s home in the middle of the night and demanded food and shelter. The militants spent the night at Singh’s home and asked Singh to join their organization. Although he disapproved of the militants’ violent methods and had no intention of joining in them, Singh responded that he would “think it over.” After this encounter, the militants visited Singh’s home on six other occasions. Each time they stayed for a short while, ate, and pressured Singh to join their group. In the early morning" }, { "docid": "5789643", "title": "", "text": "asylum and the withholding of deportation. Singh appealed to the Board, which per curiam affirmed the decision of the Immigration Judge. The basis of the Board’s decision was twofold. First, there was “no persuasive evidence that the mistreatment suffered by the applicant at the hands of security officials was on account of his political opinion or the mere fact that he was a Sikh. He did not show that the action extended beyond an investigation of, and reaction against, those thought — rightly or wrongly — to be militants seeking the violent overthrow of the government.” Second, Singh had failed to show that he faced a threat of prosecution in any other part of India except the Punjab; the Board noted the advisory opinion of the State Department that large numbers of Sikhs led peaceful fives in other parts of India. In a separate opinion setting out the situation of the Sikhs in India, Board Member Heilman concurred. Singh then brought this action of habeas corpus in the district court. The magistrate noted that the Board had accepted Singh’s testimony as true and so he would accept it as true. He followed the usual rule that the Board’s factual determinations must be accepted unless there is a lack of substantial evidence to support them. INS v. Elias-Zacharias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Castillo v. INS, 951 F.2d 1117, 1120 (9th Cir.1991). The magistrate held that the Board’s finding that Singh had not been persecuted for his political opinion was not supported by substantial evidence, observing that the Board failed to distinguish efforts to arrest and persecute individuals suspected of criminal activity from punishment without judicial process. No doubt, the magistrate must have had in mind the occasion where, without any judicial process, Singh was arrested, imprisoned, and tortured for attending a conference to be held by the permission of the district commissioner. The magistrate concluded: “Consequently, petitioner has established asylum eligibility on the basis of past persecution and is presumed to have a well-founded fear of persecution. 8 C.F.R. § 208.13(b)(l)(i).” The magistrate" }, { "docid": "22386697", "title": "", "text": "WILLIAM A. FLETCHER, Circuit Judge: Amarjit Singh petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings. Recharacterizing it as a “motion to reconsider,” the BIA denied Singh’s motion. We grant the petition for review because we hold that the BIA abused its discretion in denying Singh’s motion to reopen. I. Background Singh is a Sikh and a native and citizen of India. In September 1998, Singh testified before an immigration judge (“IJ”) that he had been arrested in India three times in 1994 and 1995 for suspected involvement with Sikh separatists. According to his testimony, Singh was interrogated and beaten repeatedly during each of these detentions. The IJ denied Singh asylum, finding that he had not established persecution based on a statutory ground for relief. Singh and his then-attorney Jagdip Singh Sekhon agreed that Singh would appeal the IJ’s decision to the BIA, and Singh paid Sekhon for his promised services. On September 25, 1998, Sekhon timely filed a Notice of Appeal to the BIA and, by marking a box on Form EOIR-26, indicated that he would file a separate brief. During the months following, Singh contacted Sekhon’s office several times to check on the status of his appeal. He was repeatedly assured that the appeals process was lengthy and that he should be patient. In fact, however, Sekhon did not attempt to file a brief until nearly twenty months after the filing deadline. The BIA returned the brief to Sekhon and advised him that he could resubmit it with a motion for consideration of a late-filed brief. Sekhon did not seek to resubmit the brief and did not advise Singh of the BIA’s communication. On March 18, 2002, in a one-person order, the BIA summarily dismissed Singh’s appeal. Except for the second-to-last sentence of the following paragraph, the BIA’s discussion was devoted to Singh’s failure to file a brief. The BIA wrote: The appeal is dismissed. The appellant checked Box 6 on the Notice of Appeal (Form EOIR-26) indicating that a separate written brief or statement would" }, { "docid": "22074506", "title": "", "text": "Opinion by Judge FISHER; Concurrence by Judge BLOCK. ORDER Singh’s petition for rehearing and for rehearing en banc, filed January 12, 2007, is granted in part. The opinion filed November 28, 2006, see Singh v. Gonzales, 469 F.3d 863 (9th Cir.2006), is hereby withdrawn. A superseding opinion and concurrence will be filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed. OPINION FISHER, Circuit Judge: Petitioner Dalip Singh is a 42-year-old native and citizen of India. After an Immigration Judge (IJ) denied Singh’s asylum claim, Singh timely appealed the IJ’s adverse decision to the Board of Immigration Appeals (BIA). On October 7, 2003, the BIA issued its decision denying Singh’s appeal in an order affirming the IJ without an opinion. Singh and his attorney of record, Kuldip Dhariwal, swear they did not receive notice of the decision. The BIA contends, however, that it sent the decision by regular mail to Singh’s counsel, whose correct address appears on the decision’s transmittal cover sheet; the BIA acknowledges that the decision was not sent to Singh himself. Singh contends that neither he nor his attorney learned of the BIA’s October 2003 decision until February 2004, well after the time for Singh to file an appeal with this court had lapsed. See 8 U.S.C. § 1252(b)(1) (30-day time limit for filing petitions for judicial review); Caruncho v. INS, 68 F.3d 356, 359 (9th Cir.1995) (statutory time limit is mandatory and jurisdictional); see also Stone v. INS, 514 U.S. 386, 394-95, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (statutory time limit is not tolled by the filing of a motion to reopen or reconsider). On February 23, Dhariwal received a “bag and baggage order” from the Immigration and Naturalization Service, directing Singh to appear for removal on March 2, 2004. After Dhariwal phoned the BIA and was informed about its October 2003 denial of Singh’s appeal, he promptly filed a motion to reopen with the BIA, requesting that it reissue its decision so Singh could timely appeal to this court. Both Dhariwal and Singh attached affidavits to the motion" }, { "docid": "22410714", "title": "", "text": "BETTY B. FLETCHER, Circuit Judge. Jaib Singh Ray, a native and citizen of India, seeks asylum in the United States. An immigration judge (IJ), however, denied Ray’s application for asylum, and the Board of Immigration Appeals (BIA) summarily affirmed the IJ’s decision because Ray failed to file a brief on appeal. Ray submitted to the BIA two motions to reopen his case, and the BIA denied both of these motions on procedural grounds. Ray now petitions for review of the BIA’s decision to deny his second motion to reopen. We have jurisdiction to review the final order of the BIA under 8 U.S.C. § 1252. We grant Ray’s petition, and we remand with instructions for the BIA to consider the merits of his first motion to reopen. I. Ray entered- the U.S. without inspection at Brownsville, Texas, on January 17,1997. Two months later, on March 17, 1997, Ray applied , for asylum. In June of 1998, he appeared with his attorney, Jang Im, from the Law Offices of Madan Ahluwalia, for a hearing on the merits of his asylum application. At his hearing, Ray testified in the Punjabi language through an interpreter. He claimed that he had experienced past persecution and feared future persecution at the hands of the Indian government because of his participation in an organization called Akali Dal, a Sikh separatist group whose political objective is the establishment of an independent state called Khalistani. At the conclusion of the hearing, the IJ found that Ray’s testimony was not credible and denied his application for asylum and for restriction on removal. The IJ ordered Ray removed to India. Ray filed a timely notice of appeal with the BIA in which he stated he would later file a brief in support of his appeal. The notice of appeal did not indicate that Ray was represented by an attorney and provided only Ray’s home address as contact information. It did, however, contain a typewritten list of the reasons for the appeal. The list was written in English, reflecting at least some legal expertise and suggesting the preparer’s familiarity with asylum" } ]

[ { "docid": "22572437", "title": "", "text": "morale problems of policemen, not to mention the familiar figure of the Irish cop, are venerable and often-recurring themes of police fiction,” not in and of themselves entitled to copyright protection. Id. As the court said in Berkic v. Crichton, 761 F.2d 1289, 1294 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 69 (1985), “[t]he common use of such stock .... merely reminds us that in Hollywood, as in the life of men generally, there is only rarely anything new under the sun.” When we determine that a work contains both protectible and unprotectible elements, we must take care to inquire only whether “the protectible elements, standing alone, are substantially similar.” Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir.1995); see also Fisher-Price, 25 F.3d at 123. We also must recognize that dissimilarity between some aspects of the works will not automatically relieve the infringer of liability, for “no copier may defend the act of plagiarism by pointing out how much of the copy he has not pirated.” Rogers v. Koons, 960 F.2d 301, 308 (2d Cir.), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992). It is only when the similarities between the protected elements of plaintiff’s work and the allegedly infringing work are of “small import quantitatively or qualitatively” that the defendant will be found innocent of infringement. Id.; see also 3 Nimmer on Copyrights, supra, § 13.03[B][1][a]. To apply the law to the dispute before us, we examine the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting of the Dinosaur World books and the Jurassic Park works. See Walker, 784 F.2d at 48; Berkic, 761 F.2d at 1292; Reyher v. Children’s Television Workshop, 533 F.2d 87, 91 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976); Green v. Lindsey, 885 F.Supp. 469, 481-82 (S.D.N.Y.1992), aff'd, 9 F.3d 1537 (2d Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1318, 127 L.Ed.2d 667 (1994). Having reviewed both parties’ works in detail, we find that nearly all" } ]

[ { "docid": "23492479", "title": "", "text": "establish a successful copyright infringement claim, a plaintiff must show that he or she owns the copyright and that defendant copied protected elements of the work. Shaw, 919 F.2d at 1356. Copying may be established by showing that the infringer had access to plaintiffs copyrighted work and that the works at issue are substantially similar in their protected elements. Id. For purposes of their summary judgment motion, Random House and CTW did not contest ownership or access. The sole issue before us is whether any of Random House’s or CTW’s works were substantially similar to the Cavaliers’ submissions. We employ a two-part analysis in this circuit—an extrinsic test and an intrinsic test—to determine whether two works are substantially similar. Id. The “extrinsic test” is an objective comparison of specific expressive elements., “[T]he test focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works.” Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir.1994) (quotation marks and citation omitted). Although originally cast as a “test for similarity of ideas,” Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977), the extrinsic test, now encompassing all objective manifestations of expression, no longer fits that description. Shaw, 919 F.2d at 1357. The “intrinsic test” is a subjective comparison that focuses on “whether the ordinary, reasonable audience” would find the works substantially similar in the “total concept and feel of the works.” Kouf, 16 F.3d at 1045 (quotation marks and citation omitted). A court “must take care to inquire only whether ‘the protectible elements, standing alone, are substantially similar.’ ” Williams v. Crichton, 84 F.3d 581, 588 (2d Cir.1996) (emphasis in original) (citation omitted); accord Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442-43 (9th Cir.1994). Therefore, when applying the extrinsic test, a court must filter out and disregard the non-protectible elements in making its substantial similarity deter mination. See Shaw, 919 F.2d at 1361 (applying the extrinsic test to determine “whether there is substantial similarity between the protected expression of ideas in two" }, { "docid": "3352839", "title": "", "text": "copyright protection may extend only to those components of a work that are original to the author.” Id. at 348, 111 S.Ct. 1282. Thus, “[n]ot all copying ... is copyright infringement.” Id. at 361, 111 S.Ct. 1282. Whether original expression has been copied is a case by case determination. Therefore, “ ‘[substantial similarity1 refers to similarity of expression, not merely similarity of ideas or concepts.” Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1398 (9th Cir.1997) (citing 17 U.S.C. § 102(b)). And it is only “protected expression” which is relevant for purposes of assessing “substantial similarity.” See Shaw, 919 F.2d at 1361. “As we recognized long ago in the case of competing jeweled bee pins, similarities derived from the use of common ideas cannot be protected; otherwise, the first to come up with an idea will corner the market.” Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443 (9th Cir.1994). “[T]he party claiming infringement may place ‘no reliance upon any similarity in expression resulting from’ unprotectable elements.’ ” Id. (quoting, and adding emphasis to, Aliotti v. R. Dakin & Co., 831 F.2d 898, 901 (9th Cir.1987)). “[T]he un-protectable elements have to be identified, or filtered, before the works can be considered as a whole.” Id. The Ninth Circuit uses a two-part test to determine “substantial similarity.” First, the “extrinsic”/“objective” test “objectively considers whether there are substantial similarities in both ideas and expression.” Apple Computer, 35 F.3d at 1442 (emphasis in original); see also, e.g., Smart Inventions, Inc. v. Allied Communications Corp., 94 F.Supp.2d 1060, 1065 (C.D.Cal.2000). Second, the “intrinsic”/“subjective” test looks for substantial similarity in the “total feel and concept of the works.” Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 208 (9th Cir.1988) (citation and internal quotation marks omitted). While courts often engage in “analytic dissection” for the “extrinsic” test, the “intrinsic” test asks “whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar.” Three Boys Music, 212 F.3d at 485. Only the “extrinsic” test is generally employed at the summary judgment stage," }, { "docid": "19822711", "title": "", "text": "constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). “Since direct evidence of copying is rarely possible, copying is generally established by showing (a) that the defendant had access to the copyrighted work and (b) the substantial similarity of protectible material in the two works.” Kregos v. Associated Press, 3 F.3d 656, 662 (2d Cir.1993) (citations omitted). “The determination of the extent of similarity that will constitute a substantial, and hence infringing, similarity presents one of the most difficult questions in copyright law, and one that is the least susceptible of helpful generalizations.” 4-13 Nimmer on Copyright§ 13.03 (2009); see also Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960) (“The test for infringement of a copyright is of necessity vague.”). Where the disputed works are entirely protectible, “[t]he standard test for substantial similarity between two items is whether an ‘ordinary obsexwer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.’” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir.2001) (quoting Hamil Am. Inc. v. GFI, 193 F.3d 92, 100 (2d Cir.1999)). However, when a work contains both protectible and unprotectible elements, the analysis is “more discerning.” Laureyssens v. Idea Group, Inc., 964 F.2d 131, 141 (2d Cir. 1992). Specifically, “we must attempt to extract the unprotectible elements from our consideration and ask whether the protectible elements, standing alone, are substantially similar.” Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir.1995) (citations omitted); cf. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir.) (L. Hand, J.) (“[N]o plagiarist can excuse the wrong by showing how much of his work he did not pirate.”). Further, “[i]n a copyright action . the similarity between two works must concern the expression of ideas, not the ideas themselves.” Peter F. Gaito, 602 F.3d at 67 (citing Reyher v. Children’s Television Workshop, 533 F.2d 87, 90-91 (2d Cir.1976); Nichols v." }, { "docid": "10897526", "title": "", "text": "to copyright protection. 4. We next assess whether Collezione infringed Universal’s copyrights. Assuming that the district court correctly applied the legal standard, its factual findings regarding the similarity between Universal’s GIC and EMC lines and Collezione’s 20200 and 20000 collections are entitled to considerable deference. Roanoke Cement, 413 F.3d at 433; see also Taylor Corp., 403 F.3d at 965 (observing that most circuits apply a clearly erroneous standard of review to factual finding of substantial similarity even though credibility is not implicated). Collezione argues that the court incorrectly applied the legal standard for copyright infringement by comparing Universal and Collezione’s furniture as a whole, rather than comparing the compilations of design elements. A successful claim of copyright infringement requires the plaintiff to prove that the “defendant copied the original elements of that copyright.” Lyons P’ship v. Morris Costumes, Inc., 243 F.3d 789, 801 (4th Cir.2001). “When the plaintiff possesses no direct evidence that the defendant copied its protected work, it may create a presumption of copying by indirect evidence establishing that the defendant had access to the copyrighted work and that the defendant’s work is ‘substantially similar’ to the protected material.” Id. (internal citation omitted). Substantial similarity is a two-pronged test. The plaintiff must show that the two works are (1) “extrinsieally similar because they contain substantially similar ideas that are subject to copyright protection” and (2) “intrinsically similar in the sense that they express those ideas in a substantially similar manner from the perspective of the intended audience of the work.” Id. (internal citations and quotation marks omitted). The extrinsic inquiry is an objective one on which expert testimony may be relevant. Dawson v. Hinshaw Music, Inc., 905 F.2d 731, 733 (4th Cir.1990). The extrinsic analysis looks to “external criteria” of “substantial similarities in both ideas and expression.” Apple Computer Co. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir.1994). The intrinsic inquiry, in contrast, implicates the perspective of the object’s intended observer. Dawson, 905 F.2d at 733. In assessing intrinsic similarity, the factfinder looks to the “total concept and feel of the works, but only as seen through" }, { "docid": "10897527", "title": "", "text": "to the copyrighted work and that the defendant’s work is ‘substantially similar’ to the protected material.” Id. (internal citation omitted). Substantial similarity is a two-pronged test. The plaintiff must show that the two works are (1) “extrinsieally similar because they contain substantially similar ideas that are subject to copyright protection” and (2) “intrinsically similar in the sense that they express those ideas in a substantially similar manner from the perspective of the intended audience of the work.” Id. (internal citations and quotation marks omitted). The extrinsic inquiry is an objective one on which expert testimony may be relevant. Dawson v. Hinshaw Music, Inc., 905 F.2d 731, 733 (4th Cir.1990). The extrinsic analysis looks to “external criteria” of “substantial similarities in both ideas and expression.” Apple Computer Co. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir.1994). The intrinsic inquiry, in contrast, implicates the perspective of the object’s intended observer. Dawson, 905 F.2d at 733. In assessing intrinsic similarity, the factfinder looks to the “total concept and feel of the works, but only as seen through the eyes of the ... intended audience of the plaintiffs work.” Lyons, 243 F.3d at 801. (internal citations and quotation marks omitted) (emphasis in original). Judge Learned Hand phrased the intrinsic test as whether “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960). Collezione maintains that the district court incorrectly applied the substantial similarity test by comparing the noncopyrightable elements of the parties’ furniture collections. On the extrinsic prong, Collezione argues that the court’s comparison of the two furniture collections as a whole improperly factored in noncopyrightable features such as the furniture’s shape and color. On the intrinsic prong, Collezione argues that the court’s comparison of individual pieces of furniture within each collection also encompassed these noncopyrightable features. In the furniture context, the external criteria of similar ideas and expressions will presumably be the collections’ historical themes and ornamentation. Cf. Taylor, 403 F.3d at 966" }, { "docid": "11741447", "title": "", "text": "See Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 111 (2d Cir.1998) (noting that “[t]he statutory presumption is by no means irrebutable, but it does order the burden of proof’). III. Derivative Works In evaluating whether plaintiff has established ownership of a valid copyright, defendants argue that plaintiffs photographs are derivative works that must satisfy a higher standard of “substantial originality.” {See Defs.’ Reply Br. at 5-11.) The nub of defendants’ argument is that the photographs are derivative works because they depict the defendants’ frames. {See, e.g., Defs.’ Br. at 4-13; Defs.’ Reply at 1-9.) The Copyright Act defines a derivative work as a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. 17 U.S.C. § 101. Thus, a derivative work must incorporate a substantial element of a preexisting work of authorship and recast, transform, or adapt those elements. Recently, the Ninth Circuit addressed the question of whether a photograph is a derivative work of the object it depicts. See Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1077-1082 (9th Cir. 2000). Although the Ninth Circuit concluded that a photograph of a vodka bottle was not a derivative work of the bottle, it reached that holding only after determin ing that the bottle was not independently copyrightable. Thus, the Ninth Circuit reasoned that the bottle was not a preexisting work. Ets-Hokin, at 1077-1082. This Court respectfully believes that the Ets-Hokin court misconstrued the nature of derivative works. While the Ets-Hokin court correctly noted that a derivative work must be based on a “preexisting work,” and that the term “work” refers to a “work of authorship” as set forth in 17 U.S.C. § 102(a), it failed to appreciate that any derivative work must recast, transform or adopt the authorship contained in the preexisting work. A" }, { "docid": "11196024", "title": "", "text": "“a plaintiff must show both that his work was ‘actually copied’ and that the portion copied amounts to an ‘improper or unlawful appropriation.’ ” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003) (internal citation omitted). “Actual copying may be established either by direct evidence or circumstantial proof that the alleged infringer had access to the protected work and that the allegedly infringing work bears a ‘probative similarity’ to the copyrighted work.” Jean v. Bug Music, Inc., No. 00CIV4022(DC), 2002 WL 287786, *4 (S.D.N.Y. Feb. 27, 2002), citing Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 75 (2d Cir.1997). “Once copying has been established, a plaintiff must next demonstrate that the copying was unlawful by showing that there is a substantial similarity between the protectible elements in the two works.” Hogan v. DC Comics, 48 F.Supp.2d 298, 307 (S.D.N.Y.1999) (internal citations omitted). “The copied elements of the work must be original and nontrivial to constitute improper appropriation.” Jean, 2002 WL 287786 at *5, citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Feist, 499 U.S. at 348, 111 S.Ct. 1282. “Careful scrutiny is necessary when the protected work contains unprotectible elements.” Jean, 2002 WL 287786 at *4, citing Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir.1995). “[A] court must attempt to extract the unprotectible elements from [its] consideration and ask whether the protectible elements, standing alone, are substantially similar.” Id., quoting Knitwaves, 71 F.3d at 1002 (emphasis in original). The copyright owner must demonstrate “that substantial similarities as to the protected elements of the work would cause an average lay observer to recognize the alleged copy as having been appropriated from the copyrighted work.” Jean, 2002 WL 287786 at *4. A court must “examine the total concept and" }, { "docid": "16837330", "title": "", "text": "& Marty Krofft Television Prods., Inc. v. McDonald’s Corp. (“Krojft ”), 562 F.2d 1157, 1164 (9th Cir.1977)). “Indeed, ‘[w]e have frequently affirmed summary judgment in favor of copyright defendants on the issue of substantial similarity.’ ” Id. at 1077 (quoting Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th Cir.1990)). “The Ninth Circuit employs a two-part test for determining whether one work is substantially similar to another.” Shaw, 919 F.2d at 1356. To prevail in their infringement case, the Benays must “prove[ ] both substantial similarity ... under the ‘extrinsic test’ and substantial similarity ... under the ‘intrinsic test.’ ” Id. (emphasis in original). “The ‘extrinsic test’ is an objective comparison of specific expressive elements.” Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.2002). “The ‘intrinsic test’ is a subjective comparison that focuses on ‘whether the ordinary, reasonable audience’ would find the works substantially similar in the ‘total concept and feel of the works.’ ” Id. (quoting Kouf, 16 F.3d at 1045). On a motion for summary judgment, we apply only the extrinsic test. The intrinsic test is left to the trier of fact. See Swirsky v. Carey, 376 F.3d 841, 844-45 (9th Cir.2004); Funky Films, 462 F.3d at 1077. If the Benays fail to satisfy the extrinsic test, they cannot survive a motion for summary judgment. See Olson v. Nat’l Broad. Co., 855 F.2d 1446, 1448-49 (9th Cir.1988). “The extrinsic test is an objective test based on specific expressive elements: the test focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works.” Kouf, 16 F.3d at 1045 (quotation omitted). “A court must take care to inquire only whether the protectable] elements, standing alone, are substantially similar.” Cavalier, 297 F.3d at 822 (emphasis and quotation omitted). “Copyright law only protects expression of ideas, not the ideas themselves.” Id. at 823. “Familiar stock scenes and themes that are staples of literature are not protected.” Id. “Scenes-a-faire, or situations and incidents that flow necessarily or naturally from a basic plot premise, cannot sustain a finding of infringement.” Id. Historical facts are" }, { "docid": "4269215", "title": "", "text": "or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; [and] (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly. 17 U.S.C. § 106. In the present case, Plaintiff claims that “Defendants violated 17 U.S.C. § 501(a)(2) by using Plaintiffs copyrighted works to prepare unauthorized derivatives and subsequently published those derivatives (and the underlying preexisting material) to the public.” PL’s Resistance Br. at 52; see Mulcahy, 386 F.3d at 852 (“One who violates the copyright owners’ right to create derivative works is an infringer.”). Since Plaintiff has no direct evidence of copying, it must establish the following elements to establish its claim of infringement: 1) that Defendants had access to Plaintiffs copyrighted work; and 2) that there is a substantial similarity between the works. Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 120 (8th Cir. 1987). To demonstrate substantial similarity, a two-step process is employed: There must be substantial similarity “not only of the general ideas but of the expressions of those ideas as well.” First, similarity of ideas is analyzed ex-trinsieally, focusing on objective similarities in the details of the works. Second, if there is substantial similarity in ideas, similarity of expression is evaluated using an intrinsic test depending on the response of the ordinary, reasonable person to the forms of expression. Id. at 120 (citations omitted). Thus, under the Hartman test, the Court must first analyze whether the details of the works contain objective similarities. Objective similarities are determined by the Court as a matter of law. ‘See Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977). In applying the extrinsic test, the Court must “filter out and disregard the non-protectible elements in making its substantial similarity determination.” Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.2002). If the works are found to contain objective" }, { "docid": "20299788", "title": "", "text": "1999 WL 47191, at *3 (S.D.N.Y. Feb. 2, 1999) (stating that probative similarities are those that, “in the normal course of events, would not be expected to arise independently in the two works.”) (citing Melville B. Nimmer & David Nimmer, 3 Nimmer on Copyrights, § 13.03[B], at 13-11 to 13-13 (1995)). In doing so, the Court should note similarities and dissimilarities “in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting.” Williams, 84 F.3d at 588. Once a plaintiff has established that the defendant had access to the protected work and that a “probative similarity” exists between the entirety of that work and the allegedly infringing work, the Court then must determine whether, in the eyes of a “lay observer,” a “substantial similarity exists between the allegedly infringing work and the protectible elements of plaintiffs.” Well-Made Toy, 210 F.Supp.2d at 159 (emphasis added); see also Williams, 84 F.3d at 587 (stating that there is no substantial similarity as a matter of law “[i]f ‘the similarity concerns only noncopyrightable elements of plaintiff [sic] work,’ or ‘no reasonable trier of fact could find the works substantially similar, .....”) (quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.1986), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 721 (1986)). To that end, the law is clear that “a copyright does not protect an idea, but only the expression of an idea,” Kregos v. The Assoc. Press, 3 F.3d 656, 663 (2d Cir.1993), and, therefore, “scenes a faire, sequences of events that ‘necessarily result from the choice of a setting or situation,’ do not enjoy copyright protection.” Williams, 84 F.3d at 587 (quoting Walker, 784 F.2d at 50). Further, the Second Circuit has cautioned courts making this determination “to inquire only whether ‘the protectible elements, standing alone, are substantially similar.’ ” Williams, 84 F.3d at 588 (quoting Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir.1995) (emphasis in original)). Finally, courts must also “recognize that dissimilarity between some aspects of the works will not automatically relieve the infringer of liability, for" }, { "docid": "23194674", "title": "", "text": "its own work to the underlying works so that failure to credit Waldman may be considered “false designation of origin”? and (2) Given that the subsequent Landoll books are not identical to the Waldman books, are they nevertheless similar enough so that Landoll’s failure to credit Waldman constitutes false designation of origin? In pursuing these two inquiries, we find it appropriate to look for guidance to the law of copyright. See, e.g., King v. Innovation Books, 976 F.2d 824, 829-30 (2d Cir.1992) (borrowing from copyright concepts to construe Lanham Act claim). 1. Are Waldman’s books original enough to constitute an “origin” which may be “falsely designated”? Copyright law defines at what point a work becomes an original creation and who should be considered its creator. It is fair to say that it would constitute a false designation of origin to publish without attribution to its author a work that is original enough to deserve copyright protection. Therefore, in order to evaluate Waldman’s claim, we must determine whether the Waldman books are original works. Under the Copyright Act, copyright protection subsists only in “original works of authorship.” 17 U.S.C. § 102(a) (Supp. II 1990). Even if a work is completely identical to a prior work, it may be considered original if it is not copied from the prior work but is rather the product of an independent effort by the author. 1 Nimmer on Copyright § 2.01[A] (citing Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090 (2d Cir.1977)). The Waldman books are adaptations of classic novels and hence are what are termed “derivative works” in copyright law, meaning that they are adaptations of existing works. Section 101 of the Copyright Act defines a derivative work as: a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is" }, { "docid": "7082348", "title": "", "text": "similarity exists between the plaintiffs and defendants’ works. The first inquiry is the “extrinsic” test and asks if there is similarity of ideas. See Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977); see also Universal City, 543 F.Supp. at 1140 (“The first inquiry is whether there is substantial similarity between the general ideas of the two works.”). “Substantial similarity” refers to similarity of expression, not merely similarity of ideas or concepts. See 17 U.S.C. § 102(b). “[Substantial similarity in the expression of an idea may appear from the mood evoked by the work as a whole.” See v. Durang, 711 F.2d 141, 144 (9th Cir.1983). The objective extrinsic test is based on specific expressive elements, and focuses on “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters and sequence of events” in the two works. Kouf v. Walt Disney Pictures Television, 16 F.3d 1042, 1045 (9th Cir.1994). The first inquiry allows “analytic dissection.” Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1398 (9th Cir.1997). ■ The second inquiry is the “intrinsic” test and asks if an “ordinary reasonable person” would perceive a substantial taking of protected expression. Dr. Seuss, 109 F.3d at 1397 (citing Krofft). The “intrinsic” test looks for-substantial similarity in the “total concept and feel” of two works. Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir.1984). The Ninth Circuit has modified the “Krofft ” test. See, Apple Computer Inc. v. Microsoft Corp., 35 F.3d 1435, 1442-43 (9th Cir.1994). The Ninth Circuit has stated: As it has evolved, however, the extrinsic test now objectively considers whether there are substantial similarities in both ideas and expression, whereas the intrinsic test continues to measure expression subjectively. ... Because only those elements of a work that are protectable ... can be compared when it comes to the ultimate question of illicit copying, we use analytic dissection to determine the scope of copyright protection before works are considered ‘as a whole.’ Id. (citation omitted). “Because the criteria incorporated into the extrinsic test encompass all objective manifestations of creativity," }, { "docid": "14051516", "title": "", "text": "66 (quoting Knitwaves Inc., 71 F.3d at 1004) (other quotation marks omitted). Accordingly, the infringement analysis proceeds as follows. First, the Court will determine what elements of the Film are protectible. Second, the Court will determine whether there is a substantial similarity between those elements and the Musical. Third, since both the Second Circuit and Canal + have emphasized the importance of one element — the total concept and feel of the works — the Court will treat total concept and feel separately. 1. What Elements of the Film are Protectible Courts assessing whether two works are similar “examine the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting....” Williams, 84 F.3d at 588. The first question is whether any of these elements of the Film are protectible. Answering that question in this case requires a brief discussion of the law governing derivative works because Canal + alleges that the Novel served as “source material for the Film.” (Compl. ¶ 15.) “Originality is the sine qua non of copyright.” Tufenkian Imp./Exp. Ventures, Inc., 338 F.3d at 131. “If a work is not original, then it is unprotectible.” Boisson, 273 F.3d at 268. “Originality does not mean that the work for which copyright protection is sought must be either novel or unique, it simply means a work independently created by its author, one not copied from pre-existing works, and a work that comes from the exercise of the creative powers of the author’s mind, in other words, the fruits of the author’s intellectual labor.” Id. (internal citation and quotation marks omitted). The originality requirement applies in equal measure to derivative works. Section 101 of the Copyright Act defines a derivative work as: a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. 17 U.S.C. § 101 (emphasis added). “The subject matter of copyright ... includes compilations and derivative works.... ” 17 U.S.C. §" }, { "docid": "13514383", "title": "", "text": "Copyright Protection in Derivative Works A “derivative work” is “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fíctionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. Also, “[a] work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’” Id. The copyright in a derivative work “extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.” Id. § 103(b). Of course, the material contributed by the author of the derivative work must be sufficiently original to receive copyright protection. See M. Kramer Mfg. Co., Inc. v. Andrews, 783 F.2d 421, 438 (4th Cir.1986). “[T]he standard for originality of a ... derivative work is ‘minimal’ and of ‘a low threshold,’ and is ‘modest at best.’” Id. (internal citations omitted). The originality requirement is satisfied “if the new material or expression has ... a faint trace of originality and if it provides a distinguishable variation.” Id. (internal citations and quotation marks omitted). In other words, a derivative work is usually sufficiently “original” to qualify for copyright protection if the “derivative work contains a ‘nontrivial’ variation from the preexisting work ‘sufficient to render the derivative work distinguishable from [the] prior work in any meaningful manner.’ ” Id. (quoting Nimmer on Copyright § 3.03[A], at 3-10). As with compilations and architectural works, though, “the copyright in a derivative work is thin ....” Schrock v. Learning Curve Int’l, Inc., 586 F.3d 513, 521 (7th Cir.2009) (emphasis added). Rule Joy argues that Commonwealth’s Architectural Drawings “are not a derivative work,” Def.’s Resp. to Add’l Br. Order at 28, while Commonwealth believes that the plans “would likely be considered a derivative work,” Pl.’s Resp. to Add’l Br. Order at 17. There is simply no doubt that Commonwealth’s Architectural Drawings are “based upon one or" }, { "docid": "7609253", "title": "", "text": "used Schrock’s photos in its promotional materials. The focus instead is on the validity of Schrock’s asserted copyright in the photos. The Copyright Act provides that “[cjopyright protection subsists ... in original works of authorship fixed in any tangible medium of expression ... from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). In this circuit, copyrightability is an issue of law for the court. Gaiman v. McFarlane, 360 F.3d 644, 648-49 (7th Cir.2004). Much of the briefing on appeal — and most of the district court’s analysis — concerned the classification of the photos as derivative works. A “derivative work” is: [A] work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. 17 U.S.C. § 101. The Copyright Act specifically grants the author of a derivative work copyright protection in the incremental original expression he contributes as long as the derivative work does not infringe the underlying work. See id. § 103(a), (b); see also Pickett v. Prince, 207 F.3d 402, 405 (7th Cir.2000); Lee v. A.R.T. Co., 125 F.3d 580, 582 (7th Cir.1997). The copyright in a derivative work, however, “extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work.” 17 U.S.C. § 103(b). A. Photographs as Derivative Works Whether photographs of a copyrighted work are derivative works is the subject of deep disagreement among courts and commentators alike. See 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 3.03[C][1], at 3-20.3 (Aug.2009). The district court held that Schrock’s photos came within the definition of derivative works because they “recast, transformed, or adapted” the three-dimensional toys into a different, two-dimensional medium. For this conclusion the" }, { "docid": "7609252", "title": "", "text": "are, his copyright is valid and enforceable because he had permission from Learning Curve to photograph the underlying copyrighted works and his photos contained sufficient incremental original expression to qualify for copyright. HIT and Learning Curve defend the district court’s determination that the photos are derivative works and argue that the court properly read Gracen to require permission to copyright as well as permission to make the derivative works. Alternatively, they maintain that Schrock’s photographs contain insufficient originality to be copyrightable and that copyright protection is barred under the scenes a faire or merger doctrines. Finally, the defendants ask us to affirm on the independent ground that Schrock orally granted them an unlimited license to use his works. As a general matter, a plaintiff asserting copyright infringement must prove: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). There is no dispute here about copying; Learning Curve used Schrock’s photos in its promotional materials. The focus instead is on the validity of Schrock’s asserted copyright in the photos. The Copyright Act provides that “[cjopyright protection subsists ... in original works of authorship fixed in any tangible medium of expression ... from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). In this circuit, copyrightability is an issue of law for the court. Gaiman v. McFarlane, 360 F.3d 644, 648-49 (7th Cir.2004). Much of the briefing on appeal — and most of the district court’s analysis — concerned the classification of the photos as derivative works. A “derivative work” is: [A] work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original" }, { "docid": "11828593", "title": "", "text": "omitted). . A derivative work is defined as a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.” 17 U.S.C. § 101. . PL&A attempts to distinguish the courses further by arguing that the ''frame” (the skills sheets and checksheets) interrelates with, adds on to, and modifies the \"painting” (Big League Sales) such that the overall course could not stand without the book. We find this argument unintelligible, even in the intended analogous context; a frame is typically chosen to complement and interrelate with the style of the painting, and may interrelate with the painting on a very high level indeed (take, for example, Georges Seurat's painted borders and frames, such as for The Channel of Gravelines, Petit Fort Philippe). And certainly a framed Mona Lisa would be nothing without the Mona Lisa. . Probative similarity, \"in this sense, ‘exists where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.' ” See Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir.2000) (quoting Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir.1982)). Previous cases in this circuit have also referred to this requirement of probative similarity as \"substantial similarity,” which potentially confuses those aspects of similarity necessary to establish the factual predicate that can support an inference of copying, with the different aspects of similarity necessary to establish that the copying is legally actionable. See Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 n. 4 (11th Cir.1994) (\"The term ‘substantial similarity’ in copyright infringement actions has not always been used with precision.”). . As a preliminary matter, the district court, adopting defendants' view, erred in its assessment that Big League Sales is only entitled to protection as a factual compilation" }, { "docid": "13514382", "title": "", "text": "architectural work is “the arrangement and coordination” of the individually unprotected “common elements (‘selected’ by the market place, i.e., rooms, windows, doors, and ‘other staple building components’).” Intervest, supra, 554 F.3d at 919. As such, the copyright protection in architectural works, as with traditional compilations, is necessarily “thin.” Id. (citing Feist, supra, 499 U.S. at 349, 111 S.Ct. 1282). However, as with all protected expression, the protection afforded to an architectural work “is subject to an important limitation!:] ... copyright protection may extend only to those components of a work that are original to the author.” Id. at 919 n. 2 (quoting Feist at 348, 111 S.Ct. 1282). This originality limitation complicates matters in the instant case significantly, as a number of factors to be detailed herein operate to constrain in some way Commonwealth’s opportunities for originality in its Architectural Drawings. An important preliminary component of this originality inquiry is the fact that the Architectural Drawings are not plainly an “architectural work,” but are also properly considered a derivative work under the Copyright Act. (4) Copyright Protection in Derivative Works A “derivative work” is “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fíctionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. Also, “[a] work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’” Id. The copyright in a derivative work “extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.” Id. § 103(b). Of course, the material contributed by the author of the derivative work must be sufficiently original to receive copyright protection. See M. Kramer Mfg. Co., Inc. v. Andrews, 783 F.2d 421, 438 (4th Cir.1986). “[T]he standard for originality of a ... derivative work is ‘minimal’ and of ‘a low threshold,’ and is ‘modest" }, { "docid": "19940686", "title": "", "text": "copyrighted work. Metcalf v. Bochco, 294 F.3d 1069, 1072 (9th. Cir.2002) (citation omitted). To determine whether two works are substantially similar, a two-part analysis — an extrinsic test and an intrinsic test — is applied. Id. at 1073. “For summary judgment, only the extrinsic test is important.” Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir.1994). “[A] plaintiff who cannot satisfy the extrinsic test necessarily loses on summary judgment, because a jury may not find substantial similarity without evidence on both the extrinsic and intrinsic tests.” Id. As we have previously stated, the extrinsic test is an objective measure of the “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.” Id. (citation and internal quotation marks omitted). In applying the extrinsic test, we must distinguish between the protecta-ble and unprotectable material because a party claiming infringement may place “no reliance upon any similarity in expression resulting from unprotectable elements.” Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1446 (9th Cir.1994) (citation and internal quotation marks omitted). In analyzing the scope of copyright protection afforded to The Mystery Magician, we note at the outset that ideas generally do not receive protection, only the expression of such ideas do. Metcalf, 294 F.3d at 1074. It is true that this dichotomy between an idea and its expression is less clear when the idea and expression are “merged” or practically indistinguishable. However, we have held that “similarities derived from the use of common ideas cannot be protected; otherwise, the first to come up with an idea will corner the market.” Apple, 35 F.3d at 1443. A closely related limiting doctrine to merger, scenes a faire, holds that expressions indispensable and naturally associated with the treatment of a given idea “are treated like ideas and are therefore not protected by copyright.” Id. at 1444. Therefore, to the extent that The Mystery Magician and the Specials are similar merely in ideas, or in expression simply due to merger or scenes a faire, such similarities do not violate Rice’s copyright. As a result, while similarities in" }, { "docid": "14051517", "title": "", "text": "of copyright.” Tufenkian Imp./Exp. Ventures, Inc., 338 F.3d at 131. “If a work is not original, then it is unprotectible.” Boisson, 273 F.3d at 268. “Originality does not mean that the work for which copyright protection is sought must be either novel or unique, it simply means a work independently created by its author, one not copied from pre-existing works, and a work that comes from the exercise of the creative powers of the author’s mind, in other words, the fruits of the author’s intellectual labor.” Id. (internal citation and quotation marks omitted). The originality requirement applies in equal measure to derivative works. Section 101 of the Copyright Act defines a derivative work as: a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. 17 U.S.C. § 101 (emphasis added). “The subject matter of copyright ... includes compilations and derivative works.... ” 17 U.S.C. § 103(a). However, “[t]he copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.” 17 U.S.C. § 103(b). Thus “copyrights in derivative works secure protection only for the incremental additions of originality contributed by the authors of the derivative works.” Silverman v. CBS Inc., 870 F.2d 40, 49 (2d Cir.1989); see also Psihoyos v. Nat’l Geographic Soc’y, 409 F.Supp.2d 268, 278 (S.D.N.Y.2005) (“Only the original elements of a derivative work, i.e. the non-trivial additional matter transforming a prior work, are protected by copyright.”); Earth Flag Ltd. v. Alamo Flag Co., 153 F.Supp.2d 349, 353 (S.D.N.Y.2001) (“Although derivative works are protectible, copyright protection extends only to the non-trivial, original contributions of the derivative work’s author.”). While this is “a low threshold,” “[t]he law requires more than a modicum of originality” and the Copyright Act “has been interpreted to require a distinguishable variation that is more than merely" } ]

[ { "docid": "22664562", "title": "", "text": "now.” Zhang traveled to Ninjing, where he stayed first with a friend and later in a small hotel. The police continued to look for him at his home in Tianjin. Concerned that he could not evade public security authorities indefinitely without proper identification, Zhang fled to the United States in May of 2000. Once here, Zhang participated in the activities of an organization variously identified as either the China Refugee Council or the China Refugee Committee, which is opposed to one-party Communist rule in China. He learned from his wife that public security officials continued to visit his home. According to an October 2000 letter from Zhang’s wife, another signatory of Zhang’s original letter to the mayor made further appeals to authorities in Beijing and was subsequently imprisoned for Falun Gong membership. In July of 2001, Zhang’s wife informed him in a letter that public security officials had returned to his house and taken away letters and photos Zhang had sent her regarding his political activities; these officials told his wife that they knew that he was colluding with “reactionary forces abroad to attack the Chinese Communist Party and Central Committee.” The police treated his wife roughly during this episode. At the conclusion of Zhang’s hearing, the IJ delivered a brief oral decision denying all of Zhang’s claims for relief, which we discuss in detail below. Zhang appealed the denial of his claims to the BIA, which affirmed without opinion the results of the IJ’s decision pursuant to the then-applicable regulation, 8 C.F.R. § 3.1(a)(7) (2002). This timely petition for review followed. DISCUSSION 1. Standard of review Because the BIA summarily affirmed the IJ’s decision, we review the decision of the IJ directly. Island v. Gonzales, 412 F.3d 391, 396 (2d Cir.2005). The IJ’s findings of fact are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir.2005). We review de novo the IJ’s application of legal principles to undisputed facts. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004); Guan Shan" } ]

[ { "docid": "22643746", "title": "", "text": "v. Ives Laboratories, Inc., 456 U.S. 844, 855, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (internal quotation marks omitted). We do not fashion legally binding sub-rules that purport to govern determination of when that generalized standard is met. In the pending case, the IJ supported his finding that Chen’s testimony lacked credibility in part by pointing to two claims that he considered implausible. First, he had difficulty believing that the authorities, lacking Chen’s address, could quickly locate her in a city of one million people just by looking in a neighborhood where young people live. Second, he had difficulty believing that she could escape from detention just because her jailors were not paying attention. We think it entirely reasonable for the IJ to have considered these claims implausible without further explanation and to have relied on them, along with her demeanor and inconsistencies in her testimony, in making the ultimate finding that she was not a credible witness. We need not consider the IJ’s alternative ground that, even if Chen was credible, she had not established a well-grounded fear of persecution. The adverse credibility finding with respect to her asylum claim necessarily precludes her claim for withholding of removal, see Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003), and, because Chen has not pursued on appeal her claim for relief under the CAT, that claim is forfeited, see Yueq-ing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005). Conclusion Accordingly, the petition for review is denied. Having completed our review, any stay of removal that the Court previously granted in this petition is vacated, and any pending motion for a stay of removal in this petition is denied as moot. Any pending request for oral argument in this petition is denied in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1). . Under the Court’s recently adopted Non-Argument Calendar procedure, four panels are each considering 12 petitions involving denial of an asylum claim every week, and one and sometimes two other panels are hearing argument in such cases on the" }, { "docid": "22663561", "title": "", "text": "F.3d at 80 (sole basis for asylum and withholding was petitioner’s testimony that he was harassed and persecuted for his political views, which the IJ validly found to be incredible); Zhou Yun Zhang, 386 F.3d at 70 (assertion that wife was forcibly sterilized, which the IJ correctly found incredible, was the only basis for alien’s petition for asylum and withholding of removal); Xusheng Shi, 374 F.3d at 66 (same as Zhou Yun Zhang). Similarly, in the analogous context of CAT claims, we have held that a petition for CAT relief may fail because of an adverse credibility ruling rendered in the asylum context where the factual basis for the alien’s CAT claim was the same as that rejected in his asylum petition. For instance, in Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir.2005), an IJ had “validly found, on the basis of inconsistent and implausible statements by Yang and her husband, that Yang had failed to establish a particular fact — Yang’s forced sterilization — and that fact formed the only potentially valid basis for Yang’s CAT claim.” Xue Hong Yang, 426 F.3d at 523. We therefore concluded in Xue Hong Yang that the BIA had not erred in denying CAT relief on the basis of the IJ’s credibility ruling with respect to the applicant’s asylum claim. In so doing, we distinguished our decision in Ramsameachire on the ground that the applicant in that case had a “completely separate factual basis” for his CAT claim. Id. Unlike all those decisions — i.e., the pre- and postRamsameachire withholding cases and the more recent CAT claim case, Xue Hong Yang — the withholding claim that petitioner seeks to reopen in this case does not rest on, or in any way require, the validity of his defeated allegations of past persecution. For Paul’s petition for withholding of removal to succeed, he needs (1) to establish that he possessed the relevant characteristic, i.e., that he was, in fact, a practicing Christian, and (2) to present sufficient objective evidence that, if returned to Pakistan, he would likely be persecuted on" }, { "docid": "22643747", "title": "", "text": "established a well-grounded fear of persecution. The adverse credibility finding with respect to her asylum claim necessarily precludes her claim for withholding of removal, see Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003), and, because Chen has not pursued on appeal her claim for relief under the CAT, that claim is forfeited, see Yueq-ing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005). Conclusion Accordingly, the petition for review is denied. Having completed our review, any stay of removal that the Court previously granted in this petition is vacated, and any pending motion for a stay of removal in this petition is denied as moot. Any pending request for oral argument in this petition is denied in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1). . Under the Court’s recently adopted Non-Argument Calendar procedure, four panels are each considering 12 petitions involving denial of an asylum claim every week, and one and sometimes two other panels are hearing argument in such cases on the Regular Argument Calendar." }, { "docid": "22422949", "title": "", "text": "for CAT relief. There is, therefore, no basis for reopening. AR at 2. Thus, on the motion for reconsideration, the BIA reviewed the entire record submitted by Alam, recognized its prior error in mechanically applying the numerical limits on motions to reopen, addressed on the merits his claim that the changed-country-conditions exception applied, and rejected it on the merits. The BIA’s finding makes clear that it has assessed the evidence behind Alam’s CAT claim and found that to be an insufficient ground for asylum as well. Because the BIA has articulated legally proper and sufficient reasoning for denying Alam’s motion to reopen, albeit in the context of deciding his motion to reconsider, remand would be pointless “because it is clear that the agency would adhere to its prior decision in the absence of error.” Xiao Ji Chen, 434 F.3d 144, 2006 WL 27427, at *10 (citations omitted). CONCLUSION For the foregoing reason, the petition for review is Denied. Having completed our review, any stay of removal that the Court previously granted in this petition is Vacated, and any pending motion for stay of removal in this petition is Denied as moot. Any pending request for oral argument in this petition is Denied in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34(d)(1)." }, { "docid": "23259764", "title": "", "text": "this past opposition. This is not merely an oversight, but a serious error in light of the fact that if the IJ had found that Zheng had suffered persecution in the past, a well-founded fear of future persecution would have been presumed. See 8 C.F.R. 1208.13(b)(1). In sum, we find that the IJ’s adverse credibility finding was improper because of its heavy reliance upon two improper considerations: (1) its false assumption that Zheng was required to prove that he faced persecution at the hands of Chinese national authorities and (2) its attention to the irrelevant issue of whether or not Zheng had truthfully expressed a desire to father additional children. We therefore hold that the adverse credibility finding amounts to an exercise of “caprice.” Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004), overruled in part on other grounds by Shi Liang Lin v. U.S, Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc). We accordingly remand to the agency for a reevaluation of the credibility finding because we cannot say with confidence that the agency would reach the same result upon a reconsideration devoid of the errors identified above. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 107 (2d Cir.2006). C. Zheng’s Claims for Withholding of Removal and Relief Under CAT. The IJ found that Zheng’s failure to testify credibly as to his claim for asylum necessarily defeated his claims for Withholding of Removal and for relief under CAT. Because we have found that the IJ’s adverse credibility finding was improper, we vacate the IJ’s denial of these claims and remand to the agency for reconsideration. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). CONCLUSION We GRANT the petition for review, VACATE the decision of the BIA denying Zheng’s claims for asylum, withholding of removal, and CAT relief, and REMAND the case for further proceedings consistent with this opinion. . In order to avoid repeated resort to the use of “[sic]” which is likely to" }, { "docid": "22804973", "title": "", "text": "or sterilization that this Court has rejected as qualifying for per se eligibility for asylum. Wang also asserts that he has a well-founded fear of persecution because he has a child in China and because his wife recently gave birth in the United States to the couple’s first child. Wang has, however, presented no evidence to show the likelihood that a person in his situation would be subject to persecution if he returned to China with children born in the United States. His claim is therefore speculative and fails to meet the standard for a well-founded fear of persecution. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (concluding that, “[i]n the absence of solid support in the record” for petitioner’s assertion that he will be subjected to persecution on account of his two United States born children, “his fear is speculative at best”). Because Wang does not raise his claim of withholding of removal in his petition to this Court, he has waived any challenge to the agency’s denial of that claim. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1, 546 n. 7 (2d Cir.2005); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998). Because a petition for review by his wife is not before the Court, we cannot consider Wang’s request that his case be consolidated with his wife’s case. For the foregoing reasons, we conclude that the BIA did not abuse its discretion in denying Wang’s motion to reopen. The petition for review is therefore denied. Having completed our review, Wang’s pending motion for a stay of removal in this petition is denied as moot, and his request for oral argument in this petition is denied in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1)." }, { "docid": "8019592", "title": "", "text": "likelihood of being overturned on appeal. Accordingly, we cannot say the BIA abused its discretion in upholding the IJ’s denial of a further continuance in the case before us. Petitioner also argues to this Court that the BIA erred in failing to adjudicate the separate, but co-pending 1-130 appeal prior to deciding the continuance appeal that is the subject of the instant petition for review. We decline to reach this issue here, however, as it was not raised before the agency. At no time did Osorio-Pedre-ros request that the BIA consolidate the two cases, nor did he argue to the BIA that it should decide the 1-130 appeal before considering the appeal of the denial of the continuance. Accordingly, the issue is waived. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir.2007), reh’g denied 489 F.3d 126, 127 (2d Cir.2007). For the foregoing reasons, the petition for review is Denied. Having completed our review, any stay of removal that the Court previously granted in this petition is VaCated, and any pending motion for a stay of removal in this petition is Dismissed as moot. . The IJ also denied voluntary departure, a decision which the petitioner has not appealed. . In front of the BIA, Osorio-Pedreros argued that his ability to point out the errors in the District Director’s decision was hindered by the agency’s failure to provide transcripts of the Stokes interview despite his request for them. We need not consider here, however, whether the agency's failure to provide transcripts of the Stokes interview should excuse Osorio-Pedreros' lack of argument because Osorio-Pedreros has not renewed this line of argument to us. Accordingly, it has been abandoned. Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1 (2d Cir.2005). In any event, the BIA was probably correct that the detailed summary of the interview to which Osorio-Pedreros did have access should have enabled the petitioner to at least make some arguments as to why the Director’s conclusion was erroneous. . Osorio-Pedreros has also failed to make any showing to this court that would substantiate his" }, { "docid": "22280365", "title": "", "text": "emigrate from China] may have an incentive to fabricate spousal persecution claims to enhance the likelihood of their admission into the United States”). In Xue Xiang Chen v. Gonzales, 418 F.3d 110 (1st Cir.2005), the Court of Appeals for the First Circuit recognized an “active circuit split” on the question of whether § 1101(a)(42) applies to non-married partners, see id. at 111 & n. 2 (collecting cases), but declined to address the issue because the IJ there had rested her decision on an independent finding of adverse credibility, see id. at 111. As noted above, the IJ in this case failed to make a general adverse credibility finding regarding Pan’s testimony and supporting statements beyond his claim that he had been married in China. As a result, assuming that no such adverse credibility finding is made on remand, our determination here turns exclusively on whether Pan qualifies' — as a matter of law and under the facts presented — as a “refugee” within the meaning of § 1101(a)(42) and the BIA’s decision in C-Y-Z-. Accordingly, for the reasons stated in Shi Liang Lin, we are required to remand to the BIA so that the agency may expressly determine in the first instance whether Pan has (1) demonstrated a well-founded fear that he himself will be sterilized if returned to China; or (2) established a derivative claim of a well-founded fear of future persecution based on any threat of abortion or sterilization against his girlfriend. Because Pan has failed to raise in his brief any arguments challenging the IJ’s denial of his withholding of removal and CAT claims, we deem those claims to have been waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1, 545 n. 7 (2d Cir.2005). * * * * * * For the foregoing reasons, the petition for review is Granted and the cause is Remanded for further proceedings consis tent with this opinion. Due to the unexplained delay of the BIA in responding to our remand in Shi Liang Lin, we direct that the BIA inform this panel in writing by Friday, June" }, { "docid": "20206602", "title": "", "text": "reasoning that sterilization makes one permanently incapable of having children, whereas an IUD is a tern porary measure, is reasonable. We therefore conclude that the BIA’s interpretation that a forced IUD insertion is not a per se ground for granting asylum is entitled to deference. As to the “other resistance” prong of the refugee definition, we need not consider Huang’s challenge to the BIA’s determination that involuntary IUD insertion, or involuntary IUD insertion plus mandatory gynecological check-ups, does not constitute persecution because Huang does not challenge the BIA’s conclusion that she failed to establish that the insertion of the IUD was or would be on account of her resistance to China’s family planning policy. She also does not challenge the BIA’s determination that the persecution at issue must be the result of resistance to the family planning policy in order to fall under the terms of statute. Therefore, any such challenge is deemed waived. See Yueqing Zhang, 426 F.3d at 541 n. 1, 545 n. 7. We have considered all of Huang’s other arguments and find them without merit. CONCLUSION For the foregoing reasons, the petition for review is denied. . Huang has abandoned or waived any challenge to the agency’s adjudication of her claims that she would be persecuted because her father practices Falun Gong or because she left China illegally. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). She has also waived any challenge to the agency's denial of CAT relief. Id. Therefore, we do not discuss these claims. . As we have completed our review, the pending motion for a stay of removal in this petition is dismissed as moot." }, { "docid": "13631837", "title": "", "text": "of future persecution, he denied her application for asylum and withholding of removal. Similarly finding no evidence to indicate that petitioner would be tortured if returned to China, the IJ denied her CAT relief. D. Petitioner’s BIA Appeal Yan Fang Zhang appealed the IJ’s decision to the BIA. While that appeal was pending, petitioner’s counsel, by letter dated May 2, 2003, advised the BIA that, on April 23, 2003, the agency had granted to Yan Fang Zhang’s husband asylum and withholding of removal apparently based on the same family planning claim. On September 8, 2003, the BIA summarily affirmed the IJ’s decision in petitioner’s case, making no mention of the contrary ruling in her husband’s case. II. Discussion A. Standard of Review Where, as in this case, the BIA summarily affirms an IJ decision denying relief from removal, see 8 C.F.R. § 1003.1(e)(4), we treat the IJ’s ruling as the final agency determination and review it directly, see Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). We review de novo any questions of law. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 543-44 (2d Cir.2005). The IJ’s factual findings, however, “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we will affirm the IJ’s factual determinations provided they are “supported by ‘reasonable, substantial, and probative’ evidence in the record,” Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)), and were “not reached arbitrarily or capriciously,” Zhou Yun Zhang v. United States INS, 386 F.3d 66, 74 (2d Cir.2004). B. Asylum and Withholding of Removal To qualify for asylum, “a refugee must demonstrate past persecution or a well-founded fear of future persecution on account of ‘race, religion, nationality, membership in a particular social group, or political opinion.’ ” Id. at 70 (quoting 8 U.S.C. § 1101(a)(42)). The standard for withholding of removal is higher, see id. at 71, requiring a showing that “it is more likely than not” that the applicant’s “ ‘life or" }, { "docid": "22773853", "title": "", "text": "to persecution. We thus defer to the IJ’s adverse credibility finding, which constitutes substantial evidence to support denial of relief from removal. See Zhou Yun Zhang, 386 F.3d at 79. III. Conclusion For the foregoing reasons, the petition for review is denied. Petitioner’s pending motion for a stay of removal is dismissed as moot. . This Court’s decision in Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.2007) (en banc) (holding that an applicant cannot secure asylum based on his or her spouse’s persecution under China's family planning policy absent some evidence of the applicant’s own resistance to the policy), does not foreclose Yan’s application because he claims that he personally refused to submit to sterilization. Nevertheless, because the alleged persecution of Yan’s wife was the predicate for his alleged resistance to sterilization, the IJ’s implausibility finding as to that spousal persecution reasonably extended to Yan’s personal resistance. . No specific evidence of coordination between Chinese customs and birth control officials was required to allow the IJ to conclude that it was implausible that a person seeking to flee from repression that could result in his sterilization would have repeatedly put himself in situations where he encountered legal authorities checking his identity and, possibly, his illegal status. . In finding Yan's testimony incredible, the IJ did identify two discrepancies that might well have been reconciled upon further inquiry: (1) a purported inconsistency between Yan’s testimony that he had no problems with his employer regarding family planning policies and an employer letter referencing past criticism on this subject; and (2) a purported discrepancy between a State Department Report and Yan’s testimony as to the possibility of individuals from Fujian Province paying a fine in order to have two children. Because we are confident that the IJ would have rejected Yan's testimony as implausible even without these discrepancies, we can confidently conclude that a remand on these points would not yield any different result. See Cao He Lin, 428 F.3d at 395." }, { "docid": "22396062", "title": "", "text": "be non-credible, we hold that petitioner is ineligible for withholding of removal to the extent that his claim of persecution is based on the asserted forced sterilization of his alleged spouse. See Gui Yin Liu, 508 F.3d at 722-23. In a similar case, our Court has recently held that a withholding of removal claim based solely on the forced sterilization of petitioner’s wife is “doomed.” Gui Yin Liu, 508 F.3d at 722-23; cf. Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir.2007) (en banc) (“[Ajpplicants can became candidates for asylum relief only based on persecution that they themselves have suffered or must suffer.”). The text of 8 U.S.C. § 1231(b)(3), the provision governing withholding of removal, does not countenance a claim of “derivative persecution.” Like a claim for asylum, withholding of removal requires a showing of direct personal persecution. A petitioner who has not “personally experienced persecution ... on a protected ground” is ineligible to obtain withholding of removal relief. Id. at 306. Therefore, petitioner cannot base his claim for withholding of removal on his wife’s alleged forcible abortion. It is not clear whether petitioner also bases a claim for relief on the alleged sterilization of his cousin. Such a claim would meet with the same problems as one derived from a spouse’s persecution and is, for the same reasons, foreclosed. CONCLUSION For these reasons, the petition for review of the denial of asylum is Dismissed for lack of jurisdiction and the petition for review of the withholding of removal claim is Denied. . The IJ also denied Sun’s application for relief under the Convention Against Torture (“CAT”). Sun’s appeal does not, however, raise any arguments concerning this claim. Accordingly, we consider only his arguments regarding his claims for asylum and withholding of removal. See, e.g., Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005) (explaining that issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal). . We also note that our recent decision in Zheng Jian Chen v. BIA, 461 F.3d 153" }, { "docid": "22773852", "title": "", "text": "386 F.3d at 74. Finally, the IJ’s finding of inherent implausibility does bear a legitimate nexus to the conclusion that Yan’s claim of persecution as a whole was not credible. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (holding that an IJ’s adverse credibility finding must be based on “specific, cogent” reasons that bear a “legitimate nexus” to the credibility of the applicant’s claim of persecution). The implausibility of Yan’s testimony that he took two expensive vacations while (a) he earned only a modest salary and supported an extended family, (b) his wife lay ill from the traumatic experience of a forced abortion, and (c) Yan himself was wanted by the authorities for evading mandatory sterilization and thus risked identification and capture during those travels, had everything to do with Yan’s claim that he was persecuted in the past and that he fears future persecution. The accounts of these vacations, in the context of the record as a whole, raise serious doubts as to whether Yan’s wife, and Yan himself, were ever subjected to persecution. We thus defer to the IJ’s adverse credibility finding, which constitutes substantial evidence to support denial of relief from removal. See Zhou Yun Zhang, 386 F.3d at 79. III. Conclusion For the foregoing reasons, the petition for review is denied. Petitioner’s pending motion for a stay of removal is dismissed as moot. . This Court’s decision in Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.2007) (en banc) (holding that an applicant cannot secure asylum based on his or her spouse’s persecution under China's family planning policy absent some evidence of the applicant’s own resistance to the policy), does not foreclose Yan’s application because he claims that he personally refused to submit to sterilization. Nevertheless, because the alleged persecution of Yan’s wife was the predicate for his alleged resistance to sterilization, the IJ’s implausibility finding as to that spousal persecution reasonably extended to Yan’s personal resistance. . No specific evidence of coordination between Chinese customs and birth control officials was required to allow the IJ to conclude that it" }, { "docid": "22768088", "title": "", "text": "As to Liu’s application for CAT relief (denied on the ground that Liu failed to show that it was more likely than not he would be tortured if removed to China), Liu’s brief on appeal makes no reference to his CAT application (or to torture generally), so that argument is deemed forfeited. Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005) (stating that where petitioner “devotes only a single eonclusory sentence to the argument” in support of a claim for relief, “we ... deem his petition for review of the IJ’s finding as to [that] claim abandoned and do not consider it”). When, as here, the BIA affirms the IJ’s decision in all respects but one, the Court reviews the IJ’s decision “as modified by the BIA’s decision — that is, minus the single argument for denying relief that was rejected by the BIA.” Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the BIA’s factual findings under the substantial evidence standard, including those “underlying the immigration court’s determination that an alien has failed to satisfy his burden of proof,” Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam), treating the findings as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). The BIA’s conclusion — that Liu failed to establish that it is “more likely than not” that he would be persecuted on account of his involvement in the June Fourth Movement — is supported by substantial evidence. Liu testified that after he was released from detention in 1991, he left and returned to China numerous times, and that the Chinese government issued a passport to him in 2002 because he had been out of detention “for many, many years.” Thus any presumption of future persecution that might be based on Liu’s detention in connection with the June Fourth Movement would be rebutted by a fundamental change in circumstances. See 8 C.F.R. § 208.16(b)(l)(i)(A) (presumption of a future risk of persecution may be rebutted by showing a" }, { "docid": "22663560", "title": "", "text": "Ramsameachire ), the only evidence of a future threat to life or freedom was petitioner’s contention, which the IJ found not to be believable, that he had held certain political views and had participated in. political activities in his native country. See Wu Biao Chen, 344 F.3d at 274. Because that same factual assertion was needed for either the asylum or the withholding claim, the credibility ruling necessarily foreclosed relief in both. See also Gomez, 947 F.2d at 663 (insufficient evidence that the applicant’s purported persecutors were inclined to harm her, which formed the sole basis of the alien’s asylum and withholding claims). And, in Zhou Yi Ni (which was decided after Ramsameachire), the only basis for the applicant’s asylum and withholding claims was a sterilization that government officials had allegedly forced the applicant’s wife to undergo. Because the IJ found the applicant’s testimony incredible as to the sterilization, see Zhou Yi Ni, 424 F.3d at 174, both asylum and withholding of removal were necessarily rendered meritless by the credibility determination. See also Majidi, 430 F.3d at 80 (sole basis for asylum and withholding was petitioner’s testimony that he was harassed and persecuted for his political views, which the IJ validly found to be incredible); Zhou Yun Zhang, 386 F.3d at 70 (assertion that wife was forcibly sterilized, which the IJ correctly found incredible, was the only basis for alien’s petition for asylum and withholding of removal); Xusheng Shi, 374 F.3d at 66 (same as Zhou Yun Zhang). Similarly, in the analogous context of CAT claims, we have held that a petition for CAT relief may fail because of an adverse credibility ruling rendered in the asylum context where the factual basis for the alien’s CAT claim was the same as that rejected in his asylum petition. For instance, in Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir.2005), an IJ had “validly found, on the basis of inconsistent and implausible statements by Yang and her husband, that Yang had failed to establish a particular fact — Yang’s forced sterilization — and that fact formed the" }, { "docid": "22702471", "title": "", "text": "must establish that her “life or freedom would be threatened in [the] country [of removal]” based on “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); see 8 C.F.R. § 1208.16(b). A rebuttable presumption of withholding eligibility attaches to an applicant who demonstrates that she suffered past persecution based on one of the enumerated grounds. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 339 (2d Cir.2006). Absent a showing of past persecution, an applicant for withholding must show that it is “more likely than not” that she would suffer future persecution based on a statutory ground if returned to the country of removal. See id.; Yueqing Zhang v. Gonzales, 426 F.3d 540, 544 (2d Cir.2005) (citing 8 C.F.R. § 208.16(b)). In accordance with our international human rights obligations, withholding of removal is a mandatory form of relief under the INA. Once an alien establishes her entitlement to withholding she cannot, with certain exceptions not relevant to this case, be removed to the country in which she is likely to be persecuted. See Wu Zheng Huang v. INS, 436 F.3d 89, 95 (2d Cir.2006). Our review of the IJ’s factual findings, including his adverse credibility determination, is for substantial evidence. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). It remains challenging, however, to determine the appropriate course to take when the IJ’s factual finding is based in part — but only in part — on what we have come to regard as analytic errors. Such errors include, for example, “a misstatement of the facts in the record [or] bald speculation or caprice,” Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004); unreasonable demands for corroborative evidence where the applicant is otherwise credible, see Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 153-54 (2d Cir.2003); Diallo v. INS, 232 F.3d 279, 285-90 (2d Cir.2000); overreliance on airport interviews and accounts thereof that do not bear indicia of reliability, see Ramsameachire, 357 F.3d at 180-81 (discussing why some airport interviews are more reliable than others); and" }, { "docid": "22768087", "title": "", "text": "of establishing that it is more likely than not that he will be persecuted on account of a protected ground” if he is returned to China. The BIA specifically found it “reasonable” for the IJ to cite a lack of “reliable evidence,” other than Liu’s own hearsay testimony, “in the form of an affidavit or letter from his wife with whom [Liu] has maintained contact, to corroborate [his] account regarding what had occurred in [China] in his absence,” as well as “any letters from the democratic association in Hong Kong for which he claimed to have served as the acting secretary of one of its divisions.” The BIA concluded that the IJ reasonably relied on Liu’s lack of' corroboration because there was “no indication on the record that such evidence was unavailable, and [Liu] has not provided any explanation on appeal for his failure to present such corroborating evidence.” DISCUSSION Liu’s withholding of removal claim is the one claim at issue on appeal. Liu does not challenge the pretermittance of his asylum application as untimely. As to Liu’s application for CAT relief (denied on the ground that Liu failed to show that it was more likely than not he would be tortured if removed to China), Liu’s brief on appeal makes no reference to his CAT application (or to torture generally), so that argument is deemed forfeited. Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005) (stating that where petitioner “devotes only a single eonclusory sentence to the argument” in support of a claim for relief, “we ... deem his petition for review of the IJ’s finding as to [that] claim abandoned and do not consider it”). When, as here, the BIA affirms the IJ’s decision in all respects but one, the Court reviews the IJ’s decision “as modified by the BIA’s decision — that is, minus the single argument for denying relief that was rejected by the BIA.” Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the BIA’s factual findings under the substantial evidence standard, including those “underlying" }, { "docid": "22663562", "title": "", "text": "only potentially valid basis for Yang’s CAT claim.” Xue Hong Yang, 426 F.3d at 523. We therefore concluded in Xue Hong Yang that the BIA had not erred in denying CAT relief on the basis of the IJ’s credibility ruling with respect to the applicant’s asylum claim. In so doing, we distinguished our decision in Ramsameachire on the ground that the applicant in that case had a “completely separate factual basis” for his CAT claim. Id. Unlike all those decisions — i.e., the pre- and postRamsameachire withholding cases and the more recent CAT claim case, Xue Hong Yang — the withholding claim that petitioner seeks to reopen in this case does not rest on, or in any way require, the validity of his defeated allegations of past persecution. For Paul’s petition for withholding of removal to succeed, he needs (1) to establish that he possessed the relevant characteristic, i.e., that he was, in fact, a practicing Christian, and (2) to present sufficient objective evidence that, if returned to Pakistan, he would likely be persecuted on the basis of his religious beliefs. The government has conceded that Paul was found to have credibly testified that he was a practicing Christian. In order to prevail, he therefore only needs to demonstrate, through the proffer of enough valid evidence, that he would likely be persecuted because of his religion. Proof that persecution of Christians in Pakistan has become more common, intense, or far-reaching — ie., the very proof that petitioner purports to have presented in filing his motion to reopen — would clearly bear on this objective inquiry. Under the circumstances, the BIA’s refusal even to consider such evidence constitutes an abuse of discretion. See 8 C.F.R. § 1003.2(c)(3)(h); see also Poradisova v. Gonzales, 420 F.3d 70, 78, 81 (2d Cir.2005) (“When an applicant moves to reopen his case based on worsened country conditions, and introduces previously unavailable reports that materially support his original application, the BIA has a duty to consider these reports and issue a reasoned decision based thereon, whether or not these reports are clearly determinative.” (emphasis omitted)). For the" }, { "docid": "23259765", "title": "", "text": "with confidence that the agency would reach the same result upon a reconsideration devoid of the errors identified above. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 107 (2d Cir.2006). C. Zheng’s Claims for Withholding of Removal and Relief Under CAT. The IJ found that Zheng’s failure to testify credibly as to his claim for asylum necessarily defeated his claims for Withholding of Removal and for relief under CAT. Because we have found that the IJ’s adverse credibility finding was improper, we vacate the IJ’s denial of these claims and remand to the agency for reconsideration. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). CONCLUSION We GRANT the petition for review, VACATE the decision of the BIA denying Zheng’s claims for asylum, withholding of removal, and CAT relief, and REMAND the case for further proceedings consistent with this opinion. . In order to avoid repeated resort to the use of “[sic]” which is likely to be distracting to the reader, we quote verbatim from all documents in the record, notably including the transcript of Zheng’s asylum hearing and the written decision of the IJ denying him relief. . We note that Zheng is represented by different counsel on the instant appeal. . The Government makes two arguments against this result, neither of which we find convincing. First, it argues that Zheng has waived the issue of the timeliness of his application on this appeal because he neglected to raise the issue before the BIA. Government's May 15, 2008 Rule 28(j) Letter. We acknowledge that, although the BIA lacks the authority to rule on constitutional issues, a petitioner may be charged with asserting an issue with possible constitutional implications before the BIA if it is possible that the issue may have been resolved on non-constitutional grounds. See Theodoropoulos v. INS, 358 F.3d 162, 172 (2d Cir.2004). Even assuming this might be the case here, however, Zheng’s brief to the BIA, although less than artfully drafted by his former counsel, does argue" }, { "docid": "22614209", "title": "", "text": "knew she had a heart condition.” But in view of the testimony accepted by the IJ, it cannot be said that the authorities did not “bother” Gao’s mother, and, indeed, Gao never so testified. He did testify that, presumably because of her heart condition, the police did not arrest his mother. According to the Country Report, prisoners in Chinese prisons often encounter serious problems in obtaining timely and adequate medical care. Assuming the truth of Gao’s “explanation” (as the IJ improperly characterized his testimony) would, according to the IJ, “drastically undercut the value of any testimony surrounding th[e] alleged campaign to eradicate all those that [sic] are in any form or fashion connected with the Falun Gong movement.” Even disregarding the IJ’s flawed logic, it must be noted that Gao has not alleged, and the Record does not indicate, a plan to “eradicate” all those connected with Falun Gong. The Record does, however, clearly indicate a concerted effort on the part of the Chinese government to persecute such individuals. The foregoing observations relating to misstatements of certain facts and misapprehensions of the Record on the part of the IJ should be considered on remand along with the issue of imputed political opinion. V. Conclusion In accordance with the foregoing, we deny Gao’s petition for review insofar as it pertains to his claim under the CAT. We grant the petition to the extent that we remand to the BIA, for further proceedings consistent herewith, Gao’s petition for review insofar as it pertains to his claims for Asylum and Withholding of Removal. . U.S. Dep't of State, Country Report on Human Rights Practices, 2000, China (incl. Hong Kong & Macau) (Feb.2001) [hereinafter \"Country Report ”]. . For the reasons stated in Part IV.C below, we conclude that the IJ’s credibility determination is not supported by the Record, even under the \"particular deference\" we accord such findings. See Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004). The IJ's stated \"problems” with Gao's credibility are therefore not dispositive of his case." } ]

[ { "docid": "22603966", "title": "", "text": "court’s judgment regarding the weight given to the § 3553(a) factors unless the district court has made “a clear error of judgment” and has imposed “a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” United States v. McBride, 511 F.3d 1293, 1297-98 (11th Cir.2007) (quotation omitted). Pursuant to § 3553(a), the sentencing “court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” See 18 U.S.C. § 3553(a). These purposes include, inter alia, promoting respect for the law, deterring criminal conduct, and protecting the public from further crimes of the defendant. 18 U.S.C. § 3553(a)(2). The sentencing court must also consider the following factors in determining a particular sentence: the nature and circumstances of the offense and the history and characteristics of the defendant, the kinds of sentences available, the Guidelines range, the pertinent policy statements of the Sentencing Commission, the need to avoid unwarranted sentence disparities, and the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7). We ordinarily expect a sentence within the Guidelines range to be reasonable, and the appellant has the burden of establishing the sentence is unreasonable in light of the record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Gonzalez cannot show the court imposed a proeedurally or substantively unreasonable sentence. The district court properly calculated her Guidelines range, treated the range as advisory, considered all the statutory factors, and imposed a sentence near the middle of the range and supported by the statutory factors. Furthermore, Gonzalez’s sentence is well below the maximum ten-year sentence available under 8 U.S.C. 1326(b)(1) for reentry after conviction of a felony (other than an aggravated felony). C. Proof of Prior Conviction We review constitutional challenges to the application of the Sentencing Guidelines not raised in the district court for plain error. United States v. Ward, 486 F.3d 1212, 1221 (11th Cir.), cert. denied, — U.S. -, 128 S.Ct. 398, 169 L.Ed.2d 280 (2007). In Almendarez-Torres v. United" } ]

[ { "docid": "19135810", "title": "", "text": "not, and the separate convictions for each do not result in a double jeopardy violation. See Bobb, 577 F.3d at 1372. VIII. Reasonableness of the Sentences Both Flanders and Callum challenge the reasonableness of their consecutive total life sentences. We employ a two-step process to review a sentence for reasonableness. United States v. Beckles, 565 F.3d 832, 845 (11th Cir.2009). First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Once we determine that the district court did not procedurally err, we then “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard, based on the totality of the circumstances.” Beckles, 565 F.3d at 845 (quotation marks omitted). We will remand for resentencing only when “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.2008) (quotation marks omitted). “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).” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir.2006) (quotation marks omitted). A. § 2A3.1(b)(l) Enhancements Appellants argue that the district court erred in applying U.S.S.G. § 2Gl.l(e)’s cross reference to U.S.S.G. § 2A3.1 in calculating their guideline range. We review de novo the district court’s application of the Sentencing Guidelines, and we review underlying factual findings for clear error. United States v. Foley, 508 F.3d 627, 632 (11th Cir.2007). The Guidelines instruct that when a cross reference applies, the entire referenced offense guideline, including enhancements, should apply. U.S.S.G. §" }, { "docid": "22270981", "title": "", "text": "1353 (11th Cir.2006). After [United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)], a sentence may be reviewed for procedural or substantive unreasonableness. A sentence may be unreasonable if it is the product of a procedure that does not follow Booker1 s requirements, regardless of the actual sentence. Additionally, a sentence may be substantively unreasonable regardless of the procedure used. United States v. Hunt, 459 F.3d 1180, 1182 n. 3 (11th Cir.2006). “[C]ourts of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 40, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). “When conducting this review [of the substantive reasonableness of a sentence], the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. at 51, 128 S.Ct. at 597. A defendant challenging his sentence bears the burden of establishing that it is unrea sonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). In general, the district court is not required “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). It is sufficient that the district court considers the defendant’s arguments at sentencing and states that it has taken the § 3553(a) factors into account. Id. at 1330; Talley, 431 F.3d at 786. After careful review of the record, we conclude that Miguel Sanchez’s sentences on Counts 4 and 5 were procedurally and substantively reasonable. First, the district court correctly calculated the Guidelines sentence range and then, within the Guidelines framework, properly imposed an upward departure. Second, there was no procedural error. In announcing that it was going to impose an upward variance, the district court expressly noted that it had concluded that the Guidelines sentence range was insufficient in light of Sanchez’s criminal history and the § 3553(a) factors. The court was not" }, { "docid": "9801550", "title": "", "text": "3553(a). United States v. Wayerski, 624 F.3d 1342, 1353 (11th Cir.2010). A district judge abuses his discretion, when he (1) fails to afford consideration to relevant factors that merited significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.2010) (en banc). The weight to be accorded any given factor is within the discretion of the sentencing judge. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir.2007). In determining a sentence, the judge must calculate the correct Guidelines range, consider the § 3553(a) factors, and make “an individualized assessment based on the facts presented.” Gall, 552 U.S. at 49-50, 128 S.Ct. at 596-97. The judge should consider every defendant “as an individual and every case as á unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Id. at 52, 128 S.Ct. at 598 (emphasis added). If the judge decides, after “serious consideration,” a sentence outside the applicable Guidelines range is warranted, he must explain why the variance is appropriate and cite “sufficient justifications.” Id. at 46, 128 S.Ct. at 594. Because of a variance, we may reverse only if we are left with “the definite and firm conviction that the district [judge] committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir.2009) (internal quotation marks omitted). The 240-month sentence in this case is a sentence well above the applicable Guidelines range of 78 to 97 months, but below the statutory maximum. Brown has failed to meet his burden of showing the upward variance is unreasonable. The judge discussed four § 3553(a) factors, including (1) Brown’s long history of obsession with young boys, (2) the seriousness of child-pornography crimes, (3) the futility of deterrence, and (4) the “self-evident” danger to society posed by Brown, as demonstrated in his “depraved” online" }, { "docid": "23685374", "title": "", "text": "HILL, Circuit Judge: James Lee Early appeals his 210-month sentence imposed after he plead guilty to robbing two banks using what turned out to be fake bombs. Finding no reversible error, we shall affirm. I. James Lee Early plead guilty to two counts of robbing a bank by violence, in violation of 18 U.S.C. § 2113(a) and (d) charged against him in two different, consolidated cases brought in the Middle and Northern Districts of Florida. In exchange for his plea, the United States agreed to dismiss all remaining charges in the two cases and to recommend a sentence at the “low end” of whatever sentencing guidelines range the district court determined. At the sentencing hearing, the district court determined an undisputed sentencing guidelines range of 78-97 months’ imprisonment. The court also heard testimony from two of Early’s victims, a statement from Early, and argument from Early’s counsel. The United States recommended a sentence at the low end of the guidelines range. The court discussed the relevant sentencing factors located in 18 U.S.C. § 3553(a) and then sentenced him to 210 months’ imprisonment. Early objected to the sentence, asserting that it was both procedurally and substantively unreasonable. On appeal, Early claims only that his sentence is substantively unreasonable. We review this claim under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The party challenging the sentence bears the burden of establishing that the sentence is unreasonable in light of the record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). While the district court making such an upward variance must have a justification compelling enough to support the degree of the variance and complete enough to allow meaningful appellate review, we will vacate such a sentence only if “we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.”" }, { "docid": "23186967", "title": "", "text": "(en banc) (internal quotation marks omitted). We have explained that, under the abuse of discretion standard of review, “there will be occasions in which we affirm the district court even though we would have gone the other way.” Id. (internal quotation marks omitted). The burden of establishing unreasonableness lies with the party challenging the sentence. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005) (per curiam). Here, the government appeals Kuhlman’s sentence; thus, the government carries the burden of demonstrating that Kuhlman’s sentence is unreasonable. III. DISCUSSION A. Reasonableness of Sentence When reviewing the reasonableness of a sentence, our task is two-fold. We will first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Gall, 552 U.S. at 51,128 S.Ct. at 597. In explaining the sentence, the district court should set forth enough information to satisfy the reviewing court of the fact that it has considered the parties’ arguments and has a reasoned basis for making its decision, see Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007), but “nothing ... 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). If the district court varies from the Guidelines range, it must offer a justification sufficient to support the degree of the variance. See Irey, 612 F.3d at 1187. After we determine that the district court’s sentencing decision is procedurally sound, we next review the substantive reasonableness of the sentence for abuse of discretion. Gall, 552 U.S. at 51, 128 S.Ct. at 597. We have held that [a] district court abuses its discretion when it (1) fails to afford consideration to relevant" }, { "docid": "23186968", "title": "", "text": "explaining the sentence, the district court should set forth enough information to satisfy the reviewing court of the fact that it has considered the parties’ arguments and has a reasoned basis for making its decision, see Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007), but “nothing ... 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). If the district court varies from the Guidelines range, it must offer a justification sufficient to support the degree of the variance. See Irey, 612 F.3d at 1187. After we determine that the district court’s sentencing decision is procedurally sound, we next review the substantive reasonableness of the sentence for abuse of discretion. Gall, 552 U.S. at 51, 128 S.Ct. at 597. We have held that [a] district court abuses its discretion when it (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors. As for the third way that discretion can be abused, a district court commits a clear error of judgment when it considers the proper factors but balances them unreasonably. Irey, 612 F.3d at 1189 (citations and internal quotation marks omitted). A district court’s unjustified reliance on a single factor “may be a symptom of an unreasonable sentence.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.2008). However, significant reliance on a single factor does not necessarily render a sentence unreasonable. Id. at 1192; see Gall, 552 U.S. at 57, 128 S.Ct. at 600 (holding that a district court did not commit reversible error simply because it “attached great weight” to one factor). We have held that “[t]he weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court, and we will not substitute our judgment" }, { "docid": "22729968", "title": "", "text": "and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. at 597. Accordingly, the district court must “includ[e] an explanation for any deviation from the Guidelines range.” Id. In determining whether a sentence is substantively reasonable, this Court must consider the totality of the circumstances. Id. If the sentence is outside the guidelines range, this Court may consider the deviation, “but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id. (citation omitted). We have recognized that “there is a range of reasonable sentences from which the district court may choose,” and the burden of establishing that the sentence is unreasonable in light of the record and the § 3553(a) factors lies with the party challenging the sentence. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). Nonetheless, the district court does not have unfettered discretion in sentencing. United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.2008). The § 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 kinds of sentences available; (6) the Sentencing Guidelines range; (7) pertinent policy statements of the Sentencing Commission; and (8) the need to avoid unwanted sentencing disparities. See 18 U.S.C. § 3553(a). While the district court must consider these factors in imposing the sentence, it is not required to discuss each factor. Talley, 431 F.3d at 786. A district court’s unjustified reliance on a single § 3553(a) factor may be a “symptom” of an unreasonable sentence. See Pugh, 515 F.3d at 1191 (citation omitted). However, such a sentence is not necessarily unreasonable. See Gall, 128 S.Ct. at" }, { "docid": "3114710", "title": "", "text": "right to demand that a search warrant be obtained. That Joseph refused to give a statement to police, after Joseph’s reading a form advising him of his Miranda rights shows that Joseph was able to read and to understand the forms and was able to exercise his right to say “no” in the face of police authority. The record supports the district court’s determination that Joseph’s consent was freely and voluntarily given. Thus, the seizure of items during the second search of Joseph’s bedroom violated no Fourth Amendment rights. The district court denied properly Joseph’s motion to suppress. II. We review the reasonableness of a sentence under a deferential abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). The party challenging the reasonableness of the sentence bears the burden of establishing that the sentence is unreasonable in the light of both the record and the 18 U.S.C. § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). We will reverse a sentence when “we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the ease.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). In reviewing a sentence, we first examine whether the district court committed a significant procedural error, such as calculating improperly the guidelines range, failing to consider the section 3553(a) sentencing factors, basing the sentence on clearly erroneous facts, or failing to explain adequately the chosen sentence. Gall, 128 S.Ct. at 597. After we have determined that a sentence is procedurally sound, we review the sentence’s substantive reasonableness under the totality of the circumstances. Id. A sentence substantively is unreasonable if it “fails to achieve the purposes of sentencing as stated in section 3553(a).” Talley, 431 F.3d at 788. “The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the" }, { "docid": "22729967", "title": "", "text": "for reasonableness. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir.2007). The reasonableness of a final sentence is reviewed only for an abuse of discretion. Gall v. United States, 552 U.S. -, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). The district court must impose a sentence that is both procedurally and substantively reasonable. United States v. Hunt, 459 F.3d 1180, 1182 n. 3 (11th Cir.2006). The Supreme Court has explained that a sentence may be procedurally unreasonable if the district court improperly calculates the guideline range, treats the guidelines as mandatory, fails to consider the appropriate statutory factors, bases the sentence on clearly erroneous facts, or fails to adequately explain its reasoning. Gall, 128 S.Ct. at 597. The Court also suggested that review for substantive reasonableness involves an inquiry into whether the factors in 18 U.S.C. § 3553(a) support the challenged sentence. See id. at 600. If, after correctly calculating the guidelines range, a district court decides that a sentence outside that range is appropriate, it must “consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. at 597. Accordingly, the district court must “includ[e] an explanation for any deviation from the Guidelines range.” Id. In determining whether a sentence is substantively reasonable, this Court must consider the totality of the circumstances. Id. If the sentence is outside the guidelines range, this Court may consider the deviation, “but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id. (citation omitted). We have recognized that “there is a range of reasonable sentences from which the district court may choose,” and the burden of establishing that the sentence is unreasonable in light of the record and the § 3553(a) factors lies with the party challenging the sentence. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). Nonetheless," }, { "docid": "23422365", "title": "", "text": "in considering the proper factors.” Irey, 612 F.3d at 1189. “[T]he party who challenges [a] 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).” United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005); see also 18 U.S.C. § 3553(a). “In our evaluation of a sentence for reasonableness, we recognize that there is a range of reasonable sentences from which the district court may choose, 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. Leondray Gibson’s sentence is reasonable. Leondray Gibson’s adjusted offense level was 44, and the only recommended sentence within the guideline range for that offense level was life imprisonment, U.S.S.G. ch. 5, pt. A, introductory cmt. & n. 2 (2011). The district court determined that a life sentence was necessary to avoid sentencing disparities, to promote respect for the law, and to deter Leondray Gibson from committing similar crimes in the future. These are among the factors that section 3553 instructs courts to consider in calculating a sentence, as are “the nature and circumstances of the offense and the history and characteristics of the defendant.” See 18 U.S.C. § 3558(a)(1), (2)(A)-(B), (6). And the district court clarified that its statement regarding the number of lives ruined by Leondray Gibson’s activities was “in response to [his counsel’s] argument” that he was not a violent offender. The district court also explained that Leondray Gibson’s “sentence would be the exact same if [the district court] didn’t consider anything with regards to lives being destroyed.” We are not “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that l[ay] outside the range of reasonable sentences dictated by the facts of the case.” Irey, 612 F.3d at 1190. IV. CONCLUSION We AFFIRM the judgment of conviction and sentence of James Gibson. We AFFIRM the judgment of conviction and" }, { "docid": "3114711", "title": "", "text": "when “we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the ease.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). In reviewing a sentence, we first examine whether the district court committed a significant procedural error, such as calculating improperly the guidelines range, failing to consider the section 3553(a) sentencing factors, basing the sentence on clearly erroneous facts, or failing to explain adequately the chosen sentence. Gall, 128 S.Ct. at 597. After we have determined that a sentence is procedurally sound, we review the sentence’s substantive reasonableness under the totality of the circumstances. Id. A sentence substantively is unreasonable if it “fails to achieve the purposes of sentencing as stated in section 3553(a).” Talley, 431 F.3d at 788. “The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court.” United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). Joseph contends that his sentence is procedurally unreasonable for three reasons: (1) the district court applied improperly the career offender residual clause under U.S.S.G. § 4B1.2(a)(2); (2) Joseph’s conviction for battery on a law-enforce ment officer qualifies as no crime of violence under section 4B1.2(a)(2); (3) the district court should have applied the not-yet-implemented guideline amendment (Amendment 798), which eliminated the residual clause from section 4B1.2(a)(2). First, we reject (as foreclosed by binding precedent) Joseph’s argument that the residual clause of the career-offender guideline is unconstitutionally vague in the light of the Supreme Court’s decision in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). See Beckles v. United States, — U.S. —, 137 S.Ct. 886, 892, 197 L.Ed.2d 145 (2017); United States v. Matchett, 802 F.3d 1185, 1194 (11th Cir. 2015). We also reject Joseph’s argument that his Florida conviction for battery on & law-enforcement officer constitutes no crime of violence for purposes of the residual" }, { "docid": "22189692", "title": "", "text": "defendant challenging his sentence bears the burden of establishing that it is unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). We review the reasonableness of a sentence through a two-step process using a deferential abuse-of-discretion standard. United States v. Pugh, 515 F.3d 1179, 1189-90 (11th Cir.2008) (relying upon Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597 (2007)). First, we look at whether the district court committed any significant procedural error, such as miscalculating the advisory guidelines range, treating the guidelines range as mandatory, or failing to consider the 18 U.S.C. § 3553(a) factors. Id. at 1190. In considering the § 3553(a) factors, the district court need not discuss each of them individually. Rather, “an acknowledgment by the district court that it has considered the defendant’s arguments and the factors in section 3553(a) is sufficient under Booker.” Talley, 431 F.3d at 786. Second, we examine whether the sentence is substantively reasonable. Pugh, 515 F.3d at 1190. We consider the totality of the circumstances and evaluate whether the sentence achieves the sentencing purposes stated in § 3553(a). Id. at 1191; Talley, 431 F.3d at 788. A sentence may be substantively unreasonable if a district court unjustifiably relied on any one § 3553(a) factor, failed to consider pertinent § 3553(a) factors, selected the sentence arbitrarily, or based the sentence on impermissible factors. Pugh, 515 F.3d at 1191-92. Although now advisory, the guidelines are one of the § 3553(a) factors to be considered by the sentencing judge, see 18 U.S.C. § 3553(a)(4). This Court has recognized that “the use of the Guidelines remains central to the sentencing process” and stated that “ordinarily we would expect a sentence within the Guidelines range to be reasonable.” Talley, 431 F.3d at 787-88. In fact, the parties have cited no post-Booker case in our circuit where a sentence within the advisory guidelines range was held unreasonable. With this background, we turn to Sarras’s challenges to the reasonableness of his sentence. As to procedural error, Sarras argues that the district court erred in calculating the applicable guidelines when it imposed a two-level enhancement" }, { "docid": "22074680", "title": "", "text": "as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir.2008) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Under Gall, the sentencing judge must “consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.” Gall, 552 U.S. at 49-50, 128 S.Ct. 586. “[A] district court’s unjustified reliance on any one Section 3553(a) factor may be a symptom of an unreasonable sentence,” Pugh, 515 F.3d at 1191, although attaching great weight to any one factor does “not necessarily make a sentence unreasonable.” Id. at 1192. Here, the district court carefully complied with the sentencing procedures. The judge conducted an extensive sentencing hearing and listened to Snipes’s allocution, several character witnesses, and argument about sentencing. The court correctly calculated the guideline range and, again, noted that the guidelines were advisory. The sentencing transcript reveals that the judge weighed each factor embodied in the Section 3553(a) calculus before pronouncing the sentence, which was within the recommended guideline range. The sentence was not procedurally unreasonable. Next, we “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. at 1190 (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). “[W]e will not second guess the weight (or lack thereof) that the judge accorded to a given factor ... [under § 3553(a)], as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented.” Id. at 1191 (citation and quotation marks omitted). The party challenging a sentence has the burden of establishing that it was unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). The district court gave ample consideration to each of the relevant considerations found in 3553(a). Although the discussion about general deterrence was somewhat longer than the discussion of the other factors, its length corresponds with the emphasis the Sentencing" }, { "docid": "22841302", "title": "", "text": "§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The district court considered the guidelines range and the section 3553(a) factors and adequately explained Rodriguez’s sentence. Rodriguez argues that his sentence is procedurally unreasonable because the district court should not have considered that there were multiple victims in its decision to vary upward because an enhancement under section 2Bl.l(b)(2)(A) of the sentencing guidelines was the “proper mechanism” for considering multiple victims, but we disagree. This Court has held that a district court can rely on factors in imposing a variance that it had already considered in imposing an enhancement, United States v. Amedeo, 487 F.3d 823, 833-34 (11th Cir.2007), and there is no requirement that a district court must impose an enhancement before granting a variance. Rodriguez’s burden of establishing that his sentence is substantively unreasonable is heavy. See Gall, 552 U.S. at 51, 128 S.Ct. at 597. The district court has wide discretion to decide whether the section 3553(a) factors justify a variance. See id. That we “might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal.” Id. We will reverse only “if we are ‘left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.’ ” United States v. McBride, 511 F.3d 1293, 1297-98 (11th Cir.2007) (quoting United States v. Williams, 456 F.3d 1353, 1363 (11th Cir.2006)). Rodriguez’s sentence is substantively reasonable. Rodriguez argues that the sentence of 12 months of imprisonment is unreasonable because he is 54 years old, he has no prior criminal history, the offense was nonviolent, and he has already lost his job as a result of his actions, but the district court considered Rodriguez’s personal characteristics and reasonably determined" }, { "docid": "22744416", "title": "", "text": "(emphasis added). The Section 3553(a) “factors in turn ... guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.” Booker, 543 U.S. at 261, 125 S.Ct. 738; accord Winingear, 422 F.3d at 1246; see also Talley, 431 F.3d at 788 (“We must evaluate whether the sentence imposed by the district court fails to achieve the purposes of sentencing as stated in section 3553(a).”). The appellate court “will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall, 128 S.Ct. at 597. These directives leave no doubt that an appellate court may still overturn a substantively unreasonable sentence, albeit only after examining it through the prism of abuse of discretion, and that appellate review has not been extinguished. Thus, a sentence still may be substantively unreasonable if it does “not achieve the purposes of sentencing stated in § 3553(a).” United States v. Martin, 455 F.3d 1227, 1237 (11th Cir.2006). So, even though we afford “due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance,” Gall, 128 S.Ct. at 597, we may find that a district court has abused its considerable discretion if it has weighed the factors in a manner that demonstrably yields an unreasonable sentence. We are therefore still required to make the calculus ourselves, and are obliged to remand for re-sentencing “if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” United States v. McBride, 511 F.3d 1293, 1297-98 (11th Cir.2007) (internal quotation marks omitted); United States v. Clay, 483 F.3d 739, 743 (11th Cir.2007); cf. United States v. Fernandez, 443 F.3d 19, 32, 34 (2d Cir.2006) (stating' that “we will not second guess the weight (or lack thereof) that the judge accorded to a given factor ... [under § 3553(a)], as long as the" }, { "docid": "23225036", "title": "", "text": "U.S.C. § 3553(a). “A district court abuses its discretion when it (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.” Irey, 612 F.3d at 1189 (quotation omitted). We will reverse a sentence as substantively unreasonable only if we are “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” Id. at 1190 (quotation omitted). Although we do not presume that a sentence within the Guidelines range is reasonable, United States v. Hunt, 526 F.3d 739, 746 (11th Cir.2008), we ordinarily expect such a sentence to be reasonable. Talley, 431 F.3d at 788. Lebowitz fails to demonstrate that his sentence is substantively unreasonable. Lebowitz’s clandestine exposure of his minor victims to even a minimal risk of HIV infection was a circumstance of his offense conduct. Because Lebowitz’s HIV status was relevant to his offense conduct, it was properly considered by the district court. As for the mitigation evidence offered by Lebowitz, the record demonstrates that the sentencing court did consider Lebowitz’s “history of having done many good things,” and that Lebowitz’s conduct was not the “most extreme” the district court had seen. A lack of a downward variance alone does not demonstrate that the district court failed to afford consideration to these factors. See United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (“[T]he weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court.” (quotation marks omitted)); United States v. Bungar, 478 F.3d 540, 546 (3d Cir.2007) (“[A] district court’s failure to give mitigating factors the weight a defen dant contends they deserve [does not] render[ ] the sentence unreasonable.”). Finally, Lebowitz fails to demonstrate that his within-Guidelines, 320-month total sentence was a clear error of judgment. “Child" }, { "docid": "23225035", "title": "", "text": "to U.S.S.G. § 2G1.3(b)(3). However, the enhancement failed to impact the combined offense level used to calculate Lebowitz’s advisory Guidelines range. Any error in applying the enhancement was harmless. See United States v. Sarras, 575 F.3d 1191, 1220 n. 39 (11th Cir.2009). B. Substantive Reasonableness Lebowitz argues that the sentencing court abused its discretion by: (1) considering Lebowitz’s HIV-positive status; (2) failing to adequately consider mitigation evidence; and (3) imposing an unreasonable sentence. Lebowitz has the burden of showing that the sentence was unreasonable in light of the record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). Those factors include, among other things: (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 from further crimes committed by the defendant; and (5) the Guidelines range. 18 U.S.C. § 3553(a). “A district court abuses its discretion when it (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.” Irey, 612 F.3d at 1189 (quotation omitted). We will reverse a sentence as substantively unreasonable only if we are “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” Id. at 1190 (quotation omitted). Although we do not presume that a sentence within the Guidelines range is reasonable, United States v. Hunt, 526 F.3d 739, 746 (11th Cir.2008), we ordinarily expect such a sentence to be reasonable. Talley, 431 F.3d at 788. Lebowitz fails to demonstrate that his sentence is substantively unreasonable. Lebowitz’s clandestine exposure of his minor victims to even a minimal risk of" }, { "docid": "22336228", "title": "", "text": "to Barrington’s challenge to the substantive reasonableness of his sentence. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The substantive reasonableness of a sentence is reviewed for abuse of discretion, based on the totality of the circumstances. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir.2008). In arriving at a substantively reasonable sentence, the district court must consider the sentencing factors listed in 18 U.S.C. § 3553(a), including (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 needed educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims. United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005)(per curiam)(eiting 18 U.S.C. § 3553(a)). Although the district court must consider the § 3553(a) factors, it need not “state on the record that it has explicitly considered each of the § 3553(a) factors or ... discuss each of [them].” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.2005). It is sufficient for the district court to explicitly acknowledge that it considered the parties’ arguments at sentencing which were based on the sentencing factors, and that it considered the factors in § 3553(a). Id. The weight given to each factor in § 3553(a) is “a matter committed to the sound discretion of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir.2007) (internal quotation marks omitted). “The fact that [we] might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51, 128 S.Ct at 597. We review for reasonableness in light of the" }, { "docid": "7158852", "title": "", "text": "These vessels therefore facilitate the destruction of evidence and hinder prosecution of smuggling offenses. See 154 Cong. Rec. H7238-39; 154 Cong. Rec. H10153-54, H10252-54. Based on the foregoing, we conclude that Congress acted properly within its constitutional authority under the High Seas Clause in passing the DTVIA. The fact that defendants are challenging the constitutionality of a statute other than the MDLEA does not alter our conclusion about the scope of Congress’s power under the High Seas Clause. See Estupinan, 453 F.3d at 1338. We declined to embellish one statute passed under the High Seas Clause with a nexus requirement. We now decline defendants’ invitation to rewrite the Constitution to create one. C. Defendants next argue that their sentences are procedurally and substantively unreasonable. “We review sentencing decisions only for abuse of discretion, and we use a two-step process.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.2009); see also Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). First, we “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Shaw, 560 F.3d at 1237 (quoting Gall, 552 U.S. at 51, 128 S.Ct. at 597). “[T]he second step is to review the sentence’s ‘substantive reasonableness’ under the totality of the circumstances, including ‘the extent of any variance from the Guidelines range.’ ” Id. (quoting Gall, 552 U.S. at 51, 128 S.Ct. at 597). “[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).” United States v. Alfaro Moncada, 607 F.3d 720, 735 (11th Cir.2010) (quoting United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)). i. Defendants argue that their sentences are procedurally unreasonable because the district court failed to apply" }, { "docid": "23544451", "title": "", "text": "promote respect for the law, provide just punishment of the offense, deter criminal conduct, protect the public from the defendant’s future criminal conduct, and provide the defendant with needed educational or vocational training or medical care. Id. § 3553(a)(2). Among other factors, the district court must also consider the nature and circumstances of the offense, the history and characteristics of the defendant, the applicable guidelines range, and the need to avoid unwarranted sentencing disparities. See id. § 3553(a)(1), (4), (6). We ordinarily “expect a sentence within the Guidelines range to be reasonable,” United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005), and the burden of establishing that a sentence is unreasonable lies with the party challenging it, Pugh, 515 F.3d at 1189. We will vacate a sentence for substantive unreasonableness “if, but only if, we are left with the definite and firm conviction that the1 district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” Irey, 612 F.3d at 1190 (quotation marks omitted). White’s 120-month prison sentence is not unreasonable. It is below the applicable guidelines range of 188 to 235 months, and there was no abuse of discretion in the court’s weighing of the § 3553(a) factors. As the district court explained in imposing the sentence: [M]y obligation in this case is to sentence you to a sentence which is sufficient but not more than necessary to accomplish the sentencing goals set forth in the federal statutes. And those goals are not just whether or not you personally will ever be able to accomplish this type of crime again; that’s not the sole thing that I have to consider in determining the sentence. I also have to consider and find appropriate, in addition to the nature and circumstances of the offense and history and characteristics of you, Mr. White, which is demonstrated by the number of people that are here and all these letters that are written by folks that you have done a" } ]

[ { "docid": "13284515", "title": "", "text": "must ascertain whether he had such a right in the first place. The due process clause of the fourteenth amendment guarantees a criminal defendant the right to the effective assistance of counsel on his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). But the fourteenth amendment does not require a state to provide any counsel to a defendant seeking to file a certiorari petition in the United States Supreme Court. Ross v. Moffitt, 417 U.S. 600, 617-18, 94 S.Ct. 2437, 2447, 41 L.Ed.2d 341 (1974); see also Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) (“the right to appointed counsel extends to the first appeal of right, and no further”). Miller’s assertion of a right to the effective assistance of counsel thus must rest on one of two premises: He must argue that either (1) a constitutional right to the effective assistance of counsel can exist even where there is no constitutional right to counsel, such as where a state voluntarily provides legal advice to potential certiorari petitioners; or (2) counsel’s letter is properly characterized as advice in her continuing role as direct appellate counsel, not certio-rari counsel. We must reject the first of these arguments. In Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (per curiam), the Court made explicit what had been implicit in its prior opinions: The fourteenth amendment right to the effective assistance of appellate counsel is derived entirely from the fourteenth amendment right to appellate counsel, and the former cannot exist where the latter is absent. Torna held that a state criminal defendant has no fourteenth amendment right to the effective assistance of counsel when pursuing a discretionary state appeal. “Since respondent had no constitutional right to counsel,” the Court observed, “he could not be deprived of the effective assistance of counsel.” Id. at 587-88, 102 S.Ct. at 1301. The four-paragraph opinion relies on only one authority, Ross v. Mof-fitt, which denied the existence of a fourteenth amendment right to counsel for both" } ]

[ { "docid": "19098035", "title": "", "text": "L.Ed.2d 180 (1993). “Unreliability or unfairness does not result [unless] the ineffectiveness of counsel [ ] deprive[s] the defendant of a[ ] substantive or procedural right to which the law entitles him.” Id. Otherwise stated, the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quotation marks omitted). At the furthest point of his temporal continuum, Nichols claims that his appellate counsel was deficient — and, consequently, rendered ineffective assistance— because he failed to petition the Supreme Court for certiorari after we affirmed his sentence on June 11, 2004. As mentioned earlier, Nichols claims prejudice — this is, in fact, his only claim of prejudice — on the basis that he was denied the benefit of Booker’s change in the law (i.e., re-sentencing under a post-Booker, advisory Guidelines scheme), a benefit he would have received had he petitioned for certiorari — because, with a pending petition for certiorari, his conviction would not have become final before the Supreme Court decided Booker. See United States v. Barnett, 398 F.3d 516, 524 (6th Cir.2005). So, it certainly appears that Nichols can show prejudice on this claim, and the question is whether his counsel’s failure to petition for certiorari amounts to constitutionally deficient performance. The simple answer is no. As the Supreme Court has made clear, the Constitution does not entitle a criminal defendant to the assistance of counsel for the filing of a petition for certiorari, so counsel’s failure to file that petition cannot amount to constitutionally ineffective assistance. See Ross, 417 U.S. at 617, 94 S.Ct. 2437; Torna, 455 U.S. at 587-88, 102 S.Ct. 1300; cf. Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“Since respondent has no underlying constitutional right to appointed counsel in state post-conviction proceedings, she has no constitutional right to insist on the Anders procedures which were designed solely" }, { "docid": "20888218", "title": "", "text": "stage” for Sixth Amendment purposes is uncertain. The Supreme Court has ruled that whatever right to counsel exists at the post-conviction appellate stage of a state criminal case is secured directly by the Due Process Clause of the Fourteenth Amendment, rather than through incorporation of the Sixth Amendment, which protects the “trial-level right to counsel,” Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985); see Ross v. Moffitt, 417 U.S. 600, 608-11, 94 S.Ct. 2437, 2442-44, 41 L.Ed.2d 341 (1974); Miller v. Keeney, 882 F.2d 1428, 1431 n. 4 (9th Cir.1989). The Court has also ruled that there is no Due Process right to counsel in discretionary post-conviction appeals. See Coleman v. Thompson, — U.S. —, —, 111 S.Ct. 2546, 2568, 115 L.Ed.2d 640 (1991); Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301-02, 71 L.Ed.2d 475 (1982). Claudio’s appeal to the Court of Appeals was discretionary, but it was a pre-conviction appeal. The majority relies on Ross v. Moffitt, 417 U.S. at 610-11, 94 S.Ct. at 2443-44, where the Court noted the significant difference between having counsel prior to conviction “as a shield” and having counsel after conviction “as a sword.” Id. I am not certain whether the Supreme Court would afford Sixth Amendment protection to a discretionary pre-trial appeal to challenge the lawfulness of a confession when such protection would not be available directly under the Due Process Clause to challenge the same confession on a discretionary post-trial appeal. But I will assume, for the argument, that the Sixth Amendment attached to the pre-trial discretionary appeal and consider the majority’s subsequent steps. 2. Obligation to raise state law issues. The majority next rules that a lawyer’s failure to pursue on a state court appeal a state law claim can constitute a denial of federally guaranteed effective assistance of counsel. That is a significant ruling, not yet made by the Supreme Court, nor by any prior decision of this Court. It is arguable that the federal guarantee of effective assistance of counsel, whether protected by the Sixth Amendment through the Due" }, { "docid": "19098030", "title": "", "text": "has a constitutional right to counsel, and after which that same defendant does not. Nichols cannot prove ineffective assistance of counsel because he cannot link the two pieces of the ineffective-assistance standard — deficient performance and prejudice — on the same side of the demarcation: he cannot show prejudice at any point at which he had a right to counsel, and he cannot show a right to counsel (and, hence, deficient performance) at any point at which he could show prejudice. II. The Sixth Amendment guarantees that at trial and on direct “first tier” appeal every criminal defendant will have access to a lawyer to assist with his or her defense. See Halbert v. Michigan, 545 U.S. 605, 610, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). But, the Constitution does not entitle a defendant to the assistance of counsel for a discretionary appeal (e.g., a petition for certiorari). Ross, 417 U.S. at 617, 94 S.Ct. 2437 (“[T]his Court has followed a consistent policy of denying applications for appointment of counsel by persons seeking to file jurisdictional statements or petitions for certiorari in this Court”). And, “where there is no constitutional right to counsel there can be no deprivation of effective assistance,” Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (citation omitted), so the failure to file for such review cannot amount to constitutionally ineffective assistance. See Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (holding that because the defendant had no constitutional right to the assistance of counsel in pursuit of state supreme court certiorari, “he could not be deprived of the effective assistance of counsel by his retained counsel’s failure to file the [certiorari] application timely”). At trial and on first-tier appeal— the stages at which the defendant does have a constitutional right to counsel — this constitutional right to counsel means “the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (emphasis added). [But, the Sixth Amendment] does not guarantee [] an" }, { "docid": "21607603", "title": "", "text": "that it adequately presented Simmons’ claim without amendment or supplementation. The district court dismissed the petition without a hearing. Simmons now contends that no serious attempt was made to hear the merits of his claim of ineffective assistance of trial counsel in the post-conviction proceedings. A criminal defendant is guaranteed the right to counsel both at trial and on a first appeal as of right. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). The right to effective assistance of counsel is dependent on the right to counsel itself. Evitts v. Lucey, 469 U.S. 387, 396-97 n. 7, 105 S.Ct. 830, 836 n. 7, 83 L.Ed.2d 821 (1985). However, there is no constitutional right to counsel to pursue discretionary state appeals. Ross v. Moffitt, 417 U.S. at 610, 94 S.Ct. at 2443. In a more recent case, the Supreme Court has made clear that the right to counsel does not attach to collateral post-conviction proceedings. We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, see Johnson v. Avery, 393 U.S. 483, 488 [89 S.Ct. 747, 750, 21 L.Ed.2d 718] (1969), and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals. Wainwright v. Torna, 455 U.S. 586 [102 S.Ct. 1300, 71 L.Ed.2d 475] (1982); Ross v. Moffitt, 417 U.S. 600 [94 S.Ct. 2437, 41 L.Ed.2d 341] (1974). We think that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539] (1987). As the Court explained, states have no obligation to provide post-conviction relief, which is not part of the criminal proceeding itself and is considered to be civil" }, { "docid": "12134574", "title": "", "text": "Cir.1987) (same). Under these circumstances, the limited record is sufficient to allow review. See Nutall, 764 F.2d at 468 n. 5. . The respondent argues that such a claim would necessarily fail even if it were properly alleged. The respondent reasons that because the Wisconsin Supreme Court’s review is discretionary and because there is no constitutional right to counsel on discretionary review, Mad-yun could not possibly show constitutionally ineffective assistance under Strickland. See Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301-02, 71 L.Ed.2d 475 (1982); Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 2443, 41 L.Ed.2d 341 (1974). We do not agree with this reasoning because it is based on a non sequitor. To demonstrate an independent constitutional violation based on ineffective assistance of counsel, a petitioner must demonstrate both that counsel was deficient and that counsel was constitutionally required. Showing cause implicates only the first of these issues, because the source of cause, unlike that of an independent constitutional violation, need not be attributable to state action. See, e.g., Reed v. Ross, 468 U.S. 1, 14, 104 S.Ct. 2901, 2909, 82 L.Ed.2d 1 (1984) (failure to raise constitutional issue reasonably unknown to counsel provides cause). Thus, the Supreme Court has applied the Strickland standard for ineffectiveness of counsel in determining cause for a procedural default, Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645, but has not discussed either Moffitt or Torna in this context. Indeed, dicta in Murray v. Carrier and in Smith v. Murray suggest that ineffectiveness of counsel may provide cause for a default at all stages of proceedings, without regard to whether counsel is required at any particular stage. The crucial determination in deciding whether counsel’s failures provide cause for a default is not at what stage in the proceedings those failures occurred, but rather how seriously deficient was counsel’s performance. See Murray v. Carrier, 478 U.S. at 489-91, 106 S.Ct. at 2646-47 (same standard applies at all stages); Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 2665, 91 L.Ed.2d 434 (1986) (appellate defaults judged by" }, { "docid": "22285732", "title": "", "text": "fellow gang members if he did not assist his leader’s plan. The trial court denied counsel’s request for a jury instruction on this theory of defense, and the state’s appellate court affirmed in an unpublished opinion, ruling that coercion is not a defense to a charge of murder. See People v. Gleckler, 82 Ill.2d 145, 44 Ill.Dec. 483, 411 N.E.2d 849 (1980). The appellate court held that, although People v. Serrano, 286 Ill.App.3d 485, 222 Ill.Dec. 47, 676 N.E.2d 1011 (1st Dist.1997), on which Owens had relied, permits a coercion defense to a charge of armed robbery, it does not allow that defense to a charge of murder. Deeming the legal position hopeless, the public defender’s office informed Owens that it would not seek discretionary review in the Supreme Court of Illinois, though the office explained that Owens could seek review pro se (a step Owens did not take). Owens’s current position is one of cascading ineffective assistance of counsel: he contends that trial counsel was ineffective for making a doomed coercion defense; that appellate counsel was ineffective for not arguing that trial counsel had been ineffective (attempting, instead, to vindicate trial counsel’s strategy by relying on Serrano); and that the public defender was ineffective for failing to seek discretionary review by the state’s highest court on the ground that both trial and appellate counsel had been ineffective. The first variation is weak: Owens does not tell us what better defense was available, given his own statements admitting complicity. The second can be no stronger than the first and seems weaker, for reliance on Serrano appears to be an effort to make the best of a bad situation. The third variation is frivolous, for there is no constitutional right to any assistance of counsel in seeking discretionary, third-tier review, Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), and shortcomings of counsel at that stage therefore cannot violate the sixth amendment. Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982). But the third variation sets up Owens’s contention that his federal petition" }, { "docid": "15914163", "title": "", "text": "was constitutional under due process to not provide counsel on discretionary appeal. The Texas Constitution provides, “The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals.” Tex. Const. Code Ann. Art. 5, § 5 (West 2000). Therefore, the right of appeal is to the Court of Criminal Appeals, and not for a petition for rehearing to that court or a petition to the United States Supreme Court. See Ayala v. State, 633 5.W.2d 526, 528 (Tex.Crim.App.1982)(hold-ing that “[ijndigent appellants are not deprived of the effective assistance of counsel if appointed counsel fail to file a petition for discretionary review of a court of appeals’ decision.”)(citing Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982)). The Supreme Court itself has defined its review as discretionary and found the argument that a state should provide counsel to one petitioning the Court to be “unsupported by either reason or authority.” Ross v. Moffitt, 417 U.S. at 616-17, 94 S.Ct. 2437. Furthermore, the Fifth Circuit has pointedly stated, “[T]here can be no question that the granting of a motion for rehearing lies entirely within the discretion of a court of appeals. Rehearing at that point is by no means an appeal of right.” Jackson, 217 F.3d at 365. Also, a Texas court has held that because there is no right to counsel for a. discretionary review, the appellate counsel has no duty to even advise the appellant about the merits of the review. Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App.1997). Accordingly, Clark has failed to make a substantial showing of the denial of a constitutional right on this claim as there is no constitutional right, and no COA will issue. 2. Ineffective assistance of counsel at punishment phase of trial. Clark argues that he was denied effective assistance of counsel at the punishment phase of his trial when appointed counsel failed to present any available evidence at the punishment phase. The defendant bears the burden of showing by a preponderance of evidence that he was deprived of the" }, { "docid": "20888217", "title": "", "text": "been adjudicated by the Appellate Division to be without merit, a majority of the panel hearing this habeas corpus appeal now concludes that the state law claim had sufficient likelihood of success that Claudio’s state court appellate counsel denied him a federally protected right to the effective assistance of counsel by failing to argue the state law claim to the Court of Appeals. This ruling unduly extends habeas corpus jurisdiction and the Due Process Clause. To reach such a ruling, the majority takes several steps that need to be separately identified. 1. “Critical stage. ” The majority holds that the appeal to the New York Court of Appeals from the Appellate Division was a “critical stage,” see United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967), at which Claudio was entitled under the Due Process Clause to the effective assistance of counsel. I have no doubt that this appeal was an important stage, the outcome of which could be critical for Claudio. But whether it was a “critical stage” for Sixth Amendment purposes is uncertain. The Supreme Court has ruled that whatever right to counsel exists at the post-conviction appellate stage of a state criminal case is secured directly by the Due Process Clause of the Fourteenth Amendment, rather than through incorporation of the Sixth Amendment, which protects the “trial-level right to counsel,” Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985); see Ross v. Moffitt, 417 U.S. 600, 608-11, 94 S.Ct. 2437, 2442-44, 41 L.Ed.2d 341 (1974); Miller v. Keeney, 882 F.2d 1428, 1431 n. 4 (9th Cir.1989). The Court has also ruled that there is no Due Process right to counsel in discretionary post-conviction appeals. See Coleman v. Thompson, — U.S. —, —, 111 S.Ct. 2546, 2568, 115 L.Ed.2d 640 (1991); Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301-02, 71 L.Ed.2d 475 (1982). Claudio’s appeal to the Court of Appeals was discretionary, but it was a pre-conviction appeal. The majority relies on Ross v. Moffitt, 417 U.S. at 610-11, 94 S.Ct. at" }, { "docid": "459586", "title": "", "text": "alleges that trial counsel was ineffective because he failed to file a Petition for Writ of Certiorari to the United States Supreme Court and that he is therefore entitled to vacation of his conviction. Defendant cites United States v. Mazzei, 521 F.2d 639 (3rd Cir.1975), cert denied, 423 U S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975) for the proposition that a Petition for Writ of Certiorari possibly might be granted under the facts peculiar to this case. The government in opposition to defendant’s claim responds that (1) Lena failed to establish as a fact that defense counsel missed the appeal period; (2) the issues to be raised in a Petition for Writ of Certiorari were meritless and (3) the proper relief, where counsel is ineffective due to failure to file an appeal, is the granting of leave to file out of time. In United States v. Lauga, 762 F.2d 1288, (5th Cir.1985) cert. denied, 474 U.S. 860, 106 S.Ct. 173, 88 L.Ed.2d 143, defendant claimed ineffective assistance of counsel because his attorney did not seek a Writ of Certiorari from the Supreme Court. In the Lauga case, the Fifth Circuit Court of Appeals found that the suggestion that Defendant Lauga’s conviction was constitutionally infirm because his attorney did not file a Petition for Certiorari totally devoid of merit. Lauga at 1291. In the instant case, this Court has made a thorough review of all the evidence defendant has raised in his challenges to his conviction through post trial motions and his motion to vacate judgment of sentence and for a new trial. This Court, as the Court in Lauga, finds that defendant’s argument that his conviction is constitutionally infirm because his defense counsel did not file a Petition for Writ of Certiorari “devoid of merit”. To do otherwise would open the door for numerous appellants with meritless constitutional claims to seek reversal merely by having their counsel fail to file for a Writ of Certiorari. The defendant in this case knew or should have known that the time limitation for filing a Writ of Certiorari to the United" }, { "docid": "4103713", "title": "", "text": "respect to the Rule 35 motion can only be attributed to the defendant, and not to his former counsel. The only possibly cognizable issue raised in defendant’s letter of July 31, 1989, is whether his trial attorney’s alleged failure to inform him that the appeal of his conviction to the Third Circuit had been denied, thereby preventing the timely filing of a petition for writ of certiorari, would constitute ineffective assistance of counsel. I conclude that it would not. There is no federal constitutional right to appeal a criminal conviction to the Supreme Court. “A review on writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefor.” Supreme Court Rule 17; see Heckler v. Edwards, 465 U.S. 870, 876, 104 S.Ct. 1532, 1536, 79 L.Ed.2d 878 (1984). There is also no constitutional right to counsel to pursue an application for review in the Supreme Court. Ross v. Moffitt, 417 U.S. 600, 617, 94 S.Ct. 2437, 2447, 41 L.Ed.2d 341 (1974). See also Gustave v. United States, 627 F.2d 901, 906 (9th Cir.1980) (“There is no requirement that an attorney appeal issues that are clearly untenable”). In Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982), the Supreme Court held that a Florida state criminal defendant had not been deprived of effective assistance of counsel when his retained counsel failed to file a timely application for certiorari with the state supreme court. Review by the Florida Supreme Court is discretionary, as it is in the United States Supreme Court, and there is no consitu-tional right to counsel to pursue such discretionary review. “Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsel’s failure to file the application timely.” Id. at 587, 102 S.Ct. at 1301. Hence, any alleged neglect on the part of defendant’s attorney in failing to notify defendant when his appeal to the Third Circuit had been denied would not rise to the level of a" }, { "docid": "1957264", "title": "", "text": "accept, modify, or reject the Report in whole or in part. See Fed.R.Civ.P. 72(b); 28 U.S.C. §§ 636(b)(1)(B) & (C). B. Petitioner’s Objections The petitioner objects to the report on two grounds: (1) that he was denied effective assistance of appellate counsel; and (2) that he was denied due process at sentencing. 1. Ineffective Assistance of Appellate Counsel According to the petitioner, New York State has “long recognized” that counsel appointed for an indigent defendant for the appeals process continues until the Court of Appeals “has spoken.” See Petitioner’s Objections at 3. However, as Judge Peck correctly notes, there is no Federal constitutional right to counsel on a discretionary State appeal. See Report at 7-8 (citing Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341, (1974) (holding that a state court was not required to provide a defendant with counsel on his discretionary appeal to the highest state court)). Veras claims that his counsel on appeal was ineffective since he failed to raise potentially meritorious issues, and that this error should be subject to Sixth and Fourteenth Amendment standards. Notwithstanding the petitioner’s objections, Judge Peck correctly ruled that because Veras is not entitled to counsel, he cannot claim ineffective assistance of counsel. As the Supreme Court stated in Wainwright v. Torma, “A defendant cannot receive ineffective assistance of counsel where no constitutional right to such counsel exists.” 455 U.S. 586, 587-588, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (finding that since the petitioner had no constitutional right to counsel, he was not deprived of effective assistance based on his attorney’s failure to file a timely application for certiorari). 2. Denial of Due Process at Sentencing In addition, the petitioner argues that the trial court’s failure to correctly charge the jury resulted in an unfair sentencing, and that this due process claim should not be barred from federal habeas review. However, as Judge Peck correctly pointed out, “[a] sentencing due process claim is barred from federal habeas review [if] it was denied by the state courts on an adequate and independent state law procedural ground.” Flowers v. Irvine," }, { "docid": "1064923", "title": "", "text": "law. In order to establish attorney dereliction as cause, a petitioner must meet the standards for showing constitutionally ineffective assistance of counsel. See, e.g., Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Murray v. Carrier, 477 U.S. at 488-89, 106 S.Ct. 2639. A defendant in a criminal case has no constitutional right to counsel on a discretionary state appeal. See, e.g., Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (per curiam); Ross v. Moffitt, 417 U.S. 600, 610-11, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). Because DiGuglielmo had no right of appeal to the New York Court of Appeals, see N.Y.Crim. Proc. L. §§ 460.10(5) & 460.20 (McKinney 1994), his attorney’s failure to assert his present claims to that Court was not a failure of constitutional dimension and hence cannot constitute cause. See, e.g., Chalk v. Kuhlmann, 311 F.3d 525, 528 (2d Cir.2002). Further, DiGuglielmo has not satisfied his burden of showing “prejudice,” i.e., a “reasonable probability” that, but for counsel’s failure, “the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We cannot conclude that there was any reasonable probability that the outcome of DiGuglielmo’s criminal proceeding would have been different had the issues been properly presented in DiGuglielmo’s request for review by the New York Court of Appeals. The Appellate Division had ruled that the trial court’s instruction on justification was, in light of the charge as a whole, a substantially correct statement of New York law, see People v. DiGuglielmo, 258 A.D.2d at 592, 686 N.Y.S.2d at 444, and DiGuglielmo has not cited to us any appellate case indicating that such an instruction was erroneous. Moreover, even if the instruction on justification may have been erroneous, such an error would be subject to harmless-error analysis. See, e.g., Neder v. United States, 527 U.S. 1, 8-10, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (where the defendant has been represented by counsel and tried by an unbiased jury, there is a “strong presumption” that" }, { "docid": "15914162", "title": "", "text": "conduct falls within the wide range of objectively reasonable conduct. See id. To establish that the counsel’s deficiency prejudiced his defense, Clark “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. 1. Ineffective assistance of counsel on direct appeal. Clark argues that he was denied his right to counsel in preparing a motion for rehearing to the Court of Criminal Appeals and a writ of certiorari to the United States Supreme Court. This argument is unsupported as the Supreme Court has not extended the right of counsel to discretionary review. Due process does require the appointment of effective counsel for a criminal appellant pursuing a first appeal of right. Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). However, Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), held that it was constitutional under due process to not provide counsel on discretionary appeal. The Texas Constitution provides, “The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals.” Tex. Const. Code Ann. Art. 5, § 5 (West 2000). Therefore, the right of appeal is to the Court of Criminal Appeals, and not for a petition for rehearing to that court or a petition to the United States Supreme Court. See Ayala v. State, 633 5.W.2d 526, 528 (Tex.Crim.App.1982)(hold-ing that “[ijndigent appellants are not deprived of the effective assistance of counsel if appointed counsel fail to file a petition for discretionary review of a court of appeals’ decision.”)(citing Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982)). The Supreme Court itself has defined its review as discretionary and found the argument that a state should provide counsel to one petitioning the Court to be “unsupported by either reason or authority.” Ross v. Moffitt, 417 U.S. at 616-17, 94 S.Ct. 2437. Furthermore, the Fifth" }, { "docid": "16192042", "title": "", "text": "to then-existing constitutional standards.” Id. at 310, 109 S.Ct. 1060 (quotations, citations and punctuation omitted). Moreover, “[ajpplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.” Id. at 309, 109 S.Ct. 1060. . See, e.g., Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 119 S.Ct. 2199, 2204, 144 L.Ed.2d 575 (noting the ability of states to waive Eleventh Amendment immunity). . 510 U.S. at 389, 114 S.Ct. 948. . Id. at 390, 114 S.Ct. 948. . Fisher, 169 F.3d at 305 (citing Caspari, 510 U.S. at 390, 114 S.Ct. 948). . Id. (citing Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892) 122 L.Ed.2d 260 (1993)). . Evitts v. Lucey, 469 U.S. 387, 393-94, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). . Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). . Fisher, 169 F.3d at 306 (quotations omitted). . Id. (citation omitted). . See Brown v. Liberty Loan Corp. of Duval, 539 F.2d 1355, 1358 (5th Cir.1976) (\"An actual case or controversy must exist, of course, when a suit is instituted and at all stages of appellate review in order to avoid mootness.”); Dresser Industnes, Inc. v. United States, 596 F.2d 1231 (5th Cir.1979) (case becomes moot on appeal once appellant has received all of the relief requested). . See Wainwright v. Toma, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (per curiam) (1982) (“Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsel’s failure to file the application timely.”). . Id. at 587, 102 S.Ct. 1300 (citing Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974)). . Ross. 417 U.S. at 614, 94 S.Ct. 2437." }, { "docid": "15821475", "title": "", "text": "his Rule 33 motion requires us to resolve three subsidiary issues: (1) whether Kitchen had a right to counsel for his pre-appeal motion for a new trial; (2) whether counsel’s failure to file a notice of appeal was deficient performance; and (3) whether Kitchen is entitled to a presumption of prejudice, or, if he is not, whether he has shown prejudice. As explained in detail below, we hold that Kitchen had a right to counsel for his post-trial but pre-appeal Rule 33 motion. Counsel’s failure to file a notice of appeal was clearly deficient performance, but, ultimately, Kitchen’s ineffective assistance claim fails because he is not entitled to a presumption of prejudice and cannot demonstrate actual prejudice from the forfeited appeal. I. Right to Counsel Our initial inquiry in this case must be whether Kitchen had a right to counsel for his pre-appeal motion for a new trial because “[wjhere there is no constitutional right to counsel there can be no deprivation of effective assistance.” Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). See also Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982). The Supreme Court has established that a defendant’s right to counsel attaches “at or after the time that judicial proceedings have been initiated against him,” Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and once a defendant’s right to counsel attaches, the right continues to apply “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). It is equally well established that a criminal defendant enjoys this right to counsel through his first appeal of right, see Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Ross v. Moffitt, 417 U.S. 600, 607, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), but that, once the direct appeal has been decided, the right to counsel no longer applies, see Pennsylvania v. Finley, 481 U.S. 551," }, { "docid": "1064922", "title": "", "text": "they were not properly presented to New York’s highest court. Because DiGuglielmo can no longer obtain state-court review of his present claims on account of his procedural default, those claims are now to be deemed exhausted. See, e.g., Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Grey v. Hoke, 933 F.2d at 120. However, because of the procedural default, DiGuglielmo is not entitled to have the claims entertained in a federal habeas proceeding unless he can show “cause” for the default and actual “prejudice” resulting therefrom, Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639 (1986), or show that he is “actually innocent,” id. at 496, 106 S.Ct. 2639; Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (internal quotation marks omitted). DiGuglielmo argues that the failure of his attorney to raise the present claims with specificity in the request for leave to appeal to the New York Court of Appeals constitutes cause. We reject this contention as a matter of law. In order to establish attorney dereliction as cause, a petitioner must meet the standards for showing constitutionally ineffective assistance of counsel. See, e.g., Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Murray v. Carrier, 477 U.S. at 488-89, 106 S.Ct. 2639. A defendant in a criminal case has no constitutional right to counsel on a discretionary state appeal. See, e.g., Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (per curiam); Ross v. Moffitt, 417 U.S. 600, 610-11, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). Because DiGuglielmo had no right of appeal to the New York Court of Appeals, see N.Y.Crim. Proc. L. §§ 460.10(5) & 460.20 (McKinney 1994), his attorney’s failure to assert his present claims to that Court was not a failure of constitutional dimension and hence cannot constitute cause. See, e.g., Chalk v. Kuhlmann, 311 F.3d 525, 528 (2d Cir.2002). Further, DiGuglielmo has not satisfied his burden of showing “prejudice,” i.e., a “reasonable probability” that, but for counsel’s failure, “the" }, { "docid": "12134573", "title": "", "text": "caused him prejudice. Therefore, Madyun has failed to demonstrate prejudice arising out of his procedural default. And, because he has failed to demonstrate prejudice, he cannot overcome the default. The judgment of the district court is AFFIRMED. . Both this court and the district court have addressed this issue based on an abbreviated record that does not include the trial transcript or state court docket sheets. However, the parties have exhibited little or no disagreement over the contents of the full record, arguing only over its legal significance. In addition, we have before us the decision of the Wisconsin Court of Appeals, addressing precisely the issue now before us based on that court's review of the full record. We presume that the state court's exposition of the facts is correct. 28 U.S.C. § 2254(d); see also Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 768-69, 66 L.Ed. 2d 722 (1981) (§ 2254(d) applies in habeas corpus review of finding of fact made by state appellate courts); Lewis v. Lane, 832 F.2d 1446 (7th Cir.1987) (same). Under these circumstances, the limited record is sufficient to allow review. See Nutall, 764 F.2d at 468 n. 5. . The respondent argues that such a claim would necessarily fail even if it were properly alleged. The respondent reasons that because the Wisconsin Supreme Court’s review is discretionary and because there is no constitutional right to counsel on discretionary review, Mad-yun could not possibly show constitutionally ineffective assistance under Strickland. See Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301-02, 71 L.Ed.2d 475 (1982); Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 2443, 41 L.Ed.2d 341 (1974). We do not agree with this reasoning because it is based on a non sequitor. To demonstrate an independent constitutional violation based on ineffective assistance of counsel, a petitioner must demonstrate both that counsel was deficient and that counsel was constitutionally required. Showing cause implicates only the first of these issues, because the source of cause, unlike that of an independent constitutional violation, need not be attributable to state action. See, e.g.," }, { "docid": "22248712", "title": "", "text": "opinion in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), stating that the analysis in that ease “forecloses respondent’s constitutional claim.” Finley, 481 U.S. at 556, 107 S.Ct. at 1994. The rule stated in Finley is a straightforward application of precedent; it broke no new ground. Finley applies retroactively to this case. We reach the same conclusion with regard to Giarratano. There, the Court reaffirmed Finley, holding that it applies to both capital and noncapital cases. Giarratano, 492 U.S. at 12, 109 S.Ct. at 2271. A thorough review of the principles and holdings in the Court’s previous death penalty cases led the Court to conclude that “these cases require the conclusion that the rule of Pennsylvania v. Finley should apply no differently in capital cases than in noncapital cases.” Id. at 10, 109 S.Ct. at 2770 (emphasis added). It also dismissed the prisoners’ argument that the right of meaningful access to the courts, announced in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), required appointment of counsel. Giarratano, 492 U.S. at 4, 109 S.Ct. at 2767. The Court explained that the prisoner’s proposed rule “rest[ed] on a misreading” of Bounds. Id. We are convinced that Giarratano did not announce a new rule of constitutional jurisprudence, but instead was a direct application and clarification of existing precedent. B Campbell’s ineffective assistance of counsel claim fails under Finley and Giarratano; Campbell had no right to counsel in his federal and state post-conviction proceedings. Giarratano, 492 U.S. at 10, 109 S.Ct. at 2770; Finley, 481 U.S. at 555-56, 107 S.Ct. at 1993-94. “Since [he] had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel....” Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 (1982). Similarly, Giarratano disposes of Campbell’s contention that meaningful access to the courts requires the appointment of counsel. Giarratano, 492 U.S. at 11-12, 109 S.Ct. at 2771-72. We reject CampbeFs ineffective assistance claim. C Campbell’s second argument is that meaningful access to the courts required the state supreme" }, { "docid": "6232452", "title": "", "text": "also made clear that an appellate default must be evaluated under the same standards that apply to a trial default: Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial. Id. at 2648. See also Smith v. Murray, 106 S.Ct. at 2665. Since the Buelows did not allege below that their attorney’s assistance was constitutionally ineffective, such a contention is now waived. See United States ex rel. Weismiller v. Lane, 815 F.2d 1106, 1109 (7th Cir.1987). However, in any case the argument would have failed, for there is no right to competent counsel in a discretionary appeal such as the Buelows’ appeal to the state supreme court. The constitutional right to counsel is guaranteed to a defendant both for trial and for the first appeal as of right. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). That appellate-level right to counsel also comprehends the right to effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387, 393-400, 105 S.Ct. 830, 834-38, 83 L.Ed.2d 821 (1985). However, there is no constitutional right to counsel to pursue discretionary state appeals. Ross v. Moffitt, 417 U.S. at 610, 94 S.Ct. at 2443, 2444. The Supreme Court has stated summarily: “Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsel’s failure to file the application [for review to the state supreme court] timely.” Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 (1982). Thus the Buelows cannot claim a constitutional deprivation of effective representation. Nevertheless, ineffective assistance of counsel is not the only sufficient cause. A habeas petitioner can also establish cause by showing “some external impediment preventing counsel from constructing or raising the claim.” Id. at 2648. [T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule. Id." }, { "docid": "21607604", "title": "", "text": "upon their convictions, see Johnson v. Avery, 393 U.S. 483, 488 [89 S.Ct. 747, 750, 21 L.Ed.2d 718] (1969), and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals. Wainwright v. Torna, 455 U.S. 586 [102 S.Ct. 1300, 71 L.Ed.2d 475] (1982); Ross v. Moffitt, 417 U.S. 600 [94 S.Ct. 2437, 41 L.Ed.2d 341] (1974). We think that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539] (1987). As the Court explained, states have no obligation to provide post-conviction relief, which is not part of the criminal proceeding itself and is considered to be civil in nature. However, “when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well.” Finley, 481 U.S. at 557, 107 S.Ct. at 1994. Following Finley, we have held that there is no constitutional right to counsel when mounting a collateral attack on a conviction. Morrison v. Duckworth, 898 F.2d at 1300-01. See also Williams v. Lockhart, 849 F.2d 1134, 1139 (8th Cir.1988). In Illinois, nevertheless, such a right exists by statute. Ill.Rev.Stat. ch. 38, par. 122-4. The right to counsel at post-conviction proceedings is a matter of legislative grace and favor which may be altered by the legislature at will. People v. Butler, 186 Ill.App.3d 510, 133 Ill.Dec. 334, 337, 541 N.E.2d 171, 174 (1989), citing People v. Ward, 124 Ill.App.3d 974, 80 Ill.Dec. 161, 464 N.E.2d 1144 (1984). Such relief is intended to address prior unadjudicated errors which substantially denied a defendant’s constitutional rights. People v. Wishon, 163 Ill.App.3d 852, 114 Ill.Dec. 856, 857, 516 N.E.2d 1011, 1012 (1987). Recognizing that a" } ]

[ { "docid": "12282090", "title": "", "text": "justify a change in the registrant’s classification; provided, in either event, the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically find there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control. . Some courts have said that the rule requiring exhaustion of administrative remedies can be relaxed under extenuating circumstances. See, e. g., Donato v. United States, 9th Cir. 1962, 302 F.2d 468. No such circumstances have been demonstrated in this case. . In United States v. Lybrand, 279 F.Supp. 74 (E.D.N.Y. January 2, 1968), a district court recently held that tlie new amendment does not foreclose the power of courts to consider — in a criminal prosecution for refusal to submit to induction or report for civilian work— jurisdictional errors other than those pertaining to classification. This holding would not appear to be inconsistent with the statute. . We note in passing that there is at least one problem with appellant’s attack on the racial composition of his local draft board. Draft board members are public officers under authority derived from the President. In challenging the racial composition of the board, appellant indirectly challenges the qualifications of the present members and their eligibility to perform their duties. The general rule is that where one is a public officer under color of authority derived either from election or appointment, however irregular or informal, and where he discharges his duties in behalf of the public or in public interests, his qualifications are not subject to collateral attack, as in this criminal proceeding, but must be challenged by direct attack. Ex parte Ward, 1899, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765; Jessen v. United States, 10th Cir. 1957, 242 F.2d 213; United States ex rel. Doss v. Lindsley, 7th Cir. 1945, 148 F.2d 22; United States ex rel. Watkins v. Commonwealth of Pennsylvania, W.D.Pa.1963, 214 F.Supp. 913. In United States v. Richmond, C.D.Calif. 1967, 274 F.Supp. 43," } ]

[ { "docid": "21952922", "title": "", "text": "(3), and the dependence of a quo warranto proceeding on the public attorney’s discretion the court must conclude that such a proceeding is an inadequate remedy and therefore not exclusive. In light of the court’s determination that Reg. 1604.52(c) is mandatory and that the failure of the draft board to comply with such regulation can be raised as a defense in the registrant’s criminal trial; and in light of the court’s conclusion that quo warranto does not lie, and even if it did lie it would not be an adequate remedy, it is hereby ordered that the motion for judgment of acquittal be granted. . The court is aware that Nussbaum is presently on appeal and it is hoped that the United States Court of Appeals will soon resolve this issue for further guidance of the court. . Hearings before the Senate Military Affairs Committee on S. 4164, 76th Cong., 3d Sess. 384 (1940). . See Report of the National Advisory Commission on Selective Service, at 20 (1967). . 86 Cong.Rec. 11678 (1940) (remarks of Rep. Mott). . See United States v. Pitt, 144 F.2d 169, 172-173 (3d Cir. 1944); A. Ginger, The New Draft Law National Lawyers Guild 4th Ed., at 235:81-89e (1969). . See United States v. Capson, 347 F.2d 959 (10th Cir. 1965); Niznik v. United States, 173 F.2d 328 (6th Cir. 1949); United States v. Pitt, 144 F.2d 169 (3d Cir. 1944). . This wide scope of discretion has led to significant variation in classification of persons in like circumstances. See Report of the National Advisory Commission on Selective Service 83-6 (1967). . Haven v. United States, 403 F.2d 384 (9th Cir. 1968); DuVernay v. United States, 394 F.2d 979 (5th Cir. 1968). . Jessen v. United States, 242 F.2d 213 (10th Cir. 1957); United States v. Richmond, 274 F.Supp. 43 (C.D.Cal.1967). . In Stiles the board had failed to classify registrant anew based on new information as required by Reg. 625.2(c). The court held that “the induction order was invalid and that Stiles * * * was entitled to set up its invalidity in his" }, { "docid": "12898333", "title": "", "text": "as the government failed to show the impracticability of appointing members residing within the jurisdiction of Board No. 220, the Board was without jurisdiction to issue his order to report for civilian work. We disagree. Appellant relies particularly on two district court cases from California where registrants were acquitted on proof of the defense urged here. United States v. Machado, 306 F.Supp. 995 (N. D. Cal. 1969); United States v. Beltran, 306 F.Supp. 385 (N.D. Cal. 1969). Accord, United States v. DeMarco, 2 SSLR 3204 (N.D. Cal. 1969). See also United States v. Hinch, 292 F.Supp. 696 (W.D. Mo. 1968) (dictum); Martin v. Neuschel, No. 68-301 (E.D. Pa.), vacated on other grounds, 396 F.2d 759 (3d Cir. 1968) . Other decisions from the Northern District of California have taken a diametrically opposite approach. United States v. Nussbaum, 306 F.Supp. 66 (N. D. Cal. 1969), appeal pending; United States v. Kaul, 305 F.Supp. 829 (N.D. Cal. 1969). The argument made here has recently been considered and rejected by two other Circuits. Czepil v. Hershey, 425 F.2d 251 (7th Cir. March 12, 1970); United States v. Brooks, 415 F.2d 502 (6th Cir. 1969) . See also Clay v. United States, 397 F.2d 901 (5th Cir. 1968), remanded on other grounds sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969); Jessen v. United States, 242 F.2d 213 (10th Cir. 1957). We agree with Czepil and Brooks that the requirement of 32 C.F. R. § 1604.52(c) that, “if at all practicable,” board members reside in the jurisdictional area of their board is directory rather than mandatory. Since it is conceded that all members of Board No. 220 were residents of St. Louis County, then it was at least a de facto board, and the residential qualifications of its members are not subject to collateral attack by way of defense to a refusal-to-report indictment. y. Appellant finally contends that the district court erred in admitting into evidence, over his objection, a memorandum signed by three members of Board No. 220 and entered into appellant’s Selective Service file on" }, { "docid": "12898334", "title": "", "text": "251 (7th Cir. March 12, 1970); United States v. Brooks, 415 F.2d 502 (6th Cir. 1969) . See also Clay v. United States, 397 F.2d 901 (5th Cir. 1968), remanded on other grounds sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969); Jessen v. United States, 242 F.2d 213 (10th Cir. 1957). We agree with Czepil and Brooks that the requirement of 32 C.F. R. § 1604.52(c) that, “if at all practicable,” board members reside in the jurisdictional area of their board is directory rather than mandatory. Since it is conceded that all members of Board No. 220 were residents of St. Louis County, then it was at least a de facto board, and the residential qualifications of its members are not subject to collateral attack by way of defense to a refusal-to-report indictment. y. Appellant finally contends that the district court erred in admitting into evidence, over his objection, a memorandum signed by three members of Board No. 220 and entered into appellant’s Selective Service file on November 7, 1968. The memorandum states that the Board reviewed appellant’s file and noted for the record a few occurrences at the previous January 4 meeting which had escaped mention in the Clerk’s contemporaneous and summary account of what transpired at that time. The notations indicate that the Board specifically directed the Clerk to apply for and issue SSS Form 153, Order to Report for Civilian Work and Statement of Employer. Appellant’s argument is that, absent the notations in the memorandum, no specific Board authority exists to support the Clerk’s issuance of the order to report for civilian work. Reliance is placed on Brede v. United States, 396 F. 2d 155, modified on rehearing, 400 F.2d 599 (9th Cir. 1968). Significantly, that part of Brede relied upon was expressly overruled by the Ninth Circuit in its en banc decision of United States v. Stark, 418 F.2d 901 (9th Cir. 1969). See United States v. Rippe, 422 F.2d 867 (9th Cir. 1970). We believe the holding in Stark is applicable here, and we therefore adopt it." }, { "docid": "2960880", "title": "", "text": "251, 252 (7th Cir. 1970) cert. denied Czepil v. Tarr, 400 U.S. 849, 91 S.Ct. 44, 27 L. Ed.2d 87. Under either view, we are satisfied that the violation of the regulation would not be a sufficient basis for attacking the de facto authority of the board. See Ex parte Ward, 173 U.S. 452, 456, 19 S.Ct. 459, 43 L.Ed. 765; United States ex rel. Doss v. Lindsley, 148 F.2d 22 (7th Cir. 1945) Nor do we believe that induction orders affecting the members of one race are void as a matter of law because the board was composed of members of a different race. Presumably to avoid what would otherwise be a plain barrier to pre-induction review, appellant’s complaint carefully avoids any charge of discrimination in the processing of his own classification, or any charge of purposeful exclusion of blacks in the selection of the membership of the local board.15 If we were to assume that such charges are impliedly raised by the complaint, it would follow that the factual issues to be litigated would inevitably transgress the limits of preinduction review which are identified in Clark v. Gabriel, 398 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418; Oestereich v. Selective Service, etc., Board, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, and Breen v. Selective Service Local Board, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653. We, therefore, conclude that the composition of the board may not be attacked on the narrow legal grounds which are alleged in the complaint, and that if the broader problem of possible discrimination which may underlie the disturbing and improbable composition of this board were to be reviewed now, the issues would necessarily encompass the kind of factual litigation that § 10(b) (3) was intended to foreclose. III. Appellant’s final contention is that he presented a prima facie claim of late-crystallized conscientious objector status to his board which required a reopening of his 1-A classification. This contention is squarely foreclosed by Eh-lert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625. The judgment of the district court" }, { "docid": "15304786", "title": "", "text": "person acting with color of authority, even if he be not a good officer in point of law, can not be collaterally attacked.” Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765; Johnson v. Manhattan Railway Company (2 Cir.) 61 F.2d 934; United States ex rel. Doss v. Lindsley (7 Cir.) 148 F.2d 22, 23, 158 A.L.R. 525; Jessen v. United States (10 Cir.) 242 F.2d 213. This court considers that the actions severally taken in relation to the status of the defendant by the Local Board, and by the Appeal Board, supra, may not by this court be nullified or disregarded on the ground of any racial or residential disability of either such board, or of any of its members. And it is persuaded that the evidence before the court is inadequate to warrant a finding that the defendant has been subjected to discriminatory, or otherwise unjust, treatment because of his race, by either of those boards. The defendant asserts that “the failure to provide defendant with an ad-visor, as required by the applicable regulations, denied defendant a right indispensable to a fair hearing.” And he cites, and quotes from, Chernekoff v. United States (9 Cir.) 219 F.2d 721, 724, in support of his thesis. His position is not well taken; and in his citation of the Chernekoff case, supra, he leans on a broken reed. It is true that in the case thus cited the Court of Appeals for the Ninth Circuit, speaking on February 24, 1955, asserted that if it were true that in Los Angeles County, a “practice persisted” of “[t]he failure of the local board to comply with the posting of names and (sic) advisors as provided by 32 Code Fed.Regs., § 1604.41, supra,” a problem of due process was presented, and, on that premise, declared that “we have serious doubt as to the validity of such a practice by the local boards.” Its reference to 32 C.F.R., section 1604.41, was fortified by an ostensible copy of the cited section of C.F.R. in a footnote to the opinion. But the footnote, although" }, { "docid": "4029883", "title": "", "text": "was not constitutionally empowered to preside over the trial. His attack on the conviction does not question the ability or character of Judge Cashin, or the manner in which he presided over the trial. Rather, it is concerned with general constitutional questions concerning Presidential power to make interim judicial appointments and the authority of judges so appointed. Petitioner .argues that (a) the President has no power to appoint “temporary” judges; (b) if the President can make interim appointments, the “temporary” judges may not preside over criminal trials; and that in any event, (c) the President has no power to fill vacancies in the judiciary which arise when the Senate is in session. We have considered these contentions carefully; and have scrutinized the detailed arguments made by able assigned counsel on petitioner’s behalf since the issues presented have not been examined previously by a judicial tribunal in extenso. However, we believe that petitioner’s arguments cannot prevail, and are persuaded that Judge Cashin was constitutionally empowered to preside over petitioner’s trial. I. The Government urges us at the outset not to consider the merits of petitioner’s constitutional arguments because they are barred by the so-called de facto doctrine. Relying on the early case of Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899), the Government maintains that petitioner cannot challenge his conviction in collateral proceedings by asserting (for the first time) that Judge Cashin’s commission was involved. “ * * * [W]here a court has jurisdiction of an offence, and of the accused, and the proceedings are otherwise regular, a conviction is lawful although the judge holding the court may be only an officer de facto; and * * * the validity of the title of such judge to the office, or his right to exercise the judicial functions, cannot be determined on a writ of habeas corpus.” Id., at 454, 19 S.Ct. at 460. Moreover, the Government argues that even in 1955 petitioner could not have objected to a trial before Judge Cashin on the constitutional grounds asserted here, either in the District Court or in this" }, { "docid": "21952910", "title": "", "text": "a public office and those where a private party alleges that he has title to a position held by another. The use of quo warranto to challenge the usurpation of public office is typified by corporate and habeas corpus cases. The first general situation deals with corporations and corporate office. Quo warranto is often used to challenge right to hold office in a corporation. For example, in Bill v. Carr, D.C., 88 F.Supp. 578 (Conn.1949), a former director of the Northeastern Insurance Company requested that the election of the present directors be declared null and void. The case of Community Blood Bank of Kansas City Area, Inc. v. FTC, 405 F.2d 1011, 1019 (8th Cir. 1969), points out that when corporations organized under nonprofit laws actually engage in profit-making activities they may lose their charter through quo warranto proceedings. However, because the franchises of unincorporated associations do not depend on the state quo warranto is inappropriate. See Wirtz v. National Maritime Union of America, 399 F.2d 544, 546 (2nd Cir. 1968). The habeas corpus cases rely on Ex Parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899). In Ward the Court held that a person already convicted cannot, in a later habeas corpus proceeding, attack the validity of the title of the judge who tried him. In a similar case attacking the title of the state attorney the court held that the title of a person acting under color of law could not be challenged by a collateral habeas corpus proceeding. United States ex rel. Doss v. Lindsley, 148 F.2d 22, 158 A.L.R. 525 (7th Cir. 1945). The cases in which one person challenges the title of another are typified by Blackburn v. O’Brien, 289 F.Supp. 289 (W.D.Va.1968), in which one person alleged that she had title to the position held by another. Quo warranto was held proper as plaintiff’s action was “essentially one to determine the rights of both the claimant and the appointee to the postmastership in question. Such a proceeding sounds in quo warranto, the classic remedy by which to try the title to" }, { "docid": "18259525", "title": "", "text": "and induction was invalid if a board member, although a resident of the county, happened to reside outside of the particular area of the county over which the board had jurisdiction. This well established rule, concerning public officers, the validity of their acts and the manner in which their title to office can or cannot be challenged, has been invariably applied in principle to cases involving membership on Selective Service Boards. Jessen v. United States, 242 F.2d 213 (10th Cir.1957); DuVernay v. United States, 394 F.2d 979 (5th Cir.1968); Haven v. United States, 403 F.2d 384 (9th Cir.1968) (perhaps a dictum); United States v. Richmond, 274 F.Supp. 43 (C. D.Cal.1967). We know of no authority outside of this district holding otherwise. Nor does the legislative history of Section 460 suggest any Congressional intent or reason for departing from the collateral attack rule in Selective Service cases. That legislative history discloses only that the Congress preferred and intended a system of local citizen boards, rather than a widespread civil service administrative system — an objective which it carried out by requiring that board members be residents of the county over which the local board has jurisdiction. For the foregoing reasons this court concludes and holds that non-residence of a board member within the particular area of the county over which a local board has jurisdiction may not be collaterally challenged in prosecutions for refusal of induction or in other comparable proceedings in which the issue is collaterally raised. The only way in which the title to the office can be properly raised is in a direct proceeding brought against the allegedly disqualified board member to oust him from office. Under Rule 81(a) (2) Fed.R.Civ.P., any remedy that could have been obtained under a writ of quo warranto may now be achieved by a civil action of that nature. Slim Olson Inc. v. National Enforcement Comm., D.C., 118 F.Supp. 861 (1954). On the relation of interested persons the United States Attorney may commence such an action to test the de jure right of any federal official, including members of Selective Service Boards." }, { "docid": "1235093", "title": "", "text": "e. g., 32 C.F.R. § 1624.-1(b) (“[N]o registrant may be represented before the local board by anyone acting as attorney or legal counsel”). Since the consequences of classification decisions are severe and judicial review of their accuracy is very limited (See Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Wills v. United States, 384 F.2d 943 (9th Cir. 1967)) a violation of a regulation whose purpose is germane to insuring the accuracy of the decisional process should be considered prejudicial. While it is true that one cannot know whether a registrant’s classification would have been different had the board been properly constituted, it is also true that the registrant’s classification might have been different. In Oshatz v. United States, 404 F.2d 9 (9th Cir. 1968), the defendant was not tendered a loyalty questionnaire. Without inquiring into what the defendant would have said had he completed a questionnaire, and regardless of the fact that the regulation was designed primarily for the benefit of the armed services, the court said In this case Oshatz might not stand convicted of a felony had he been given the opportunity to execute the loyalty questionnaire. * * * [T]hat is sufficient prejudice to require reversal. See also Brede v. United States, 396 F.2d 155, modified on rehearing 400 F.2d 599 (9th Cir. 1968). This court considers the violation of 32 C.F.R. § 1604.51(c) to be a more fundamental violation of the registrant’s rights than those which called for reversal in Oshatz and Brede. There is a doctrine in administrative law which at first glance would cast doubt on the propriety of attacking the constitution of a local board through the device of raising the question as a defense to a criminal prosecution. In Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899), a prisoner attempted through habeas corpus to have his conviction set aside on the grounds that the commission of the judge who presided at the trial was defective. In the Ward case, and in several similar cases cited therein, the court held that" }, { "docid": "18259522", "title": "", "text": "Selective Service Regulations, the question first arises whether it should be interpreted as mandatory or merely directory. We doubt that the Director intended this additional requirement, which the Congress had not even mentioned, to be mandatory in the sense that non-compliance would affect the jurisdiction of the board and the validity of its acts. The very flexibility of the language chosen by the Director, calling for residence within the area “if at all practicable,” suggests that he intended the additional requirement to be, not mandatory, but directory only. If the Director had intended the additional area residence requirement to be mandatory and jurisdictional he would hardly have injected a further, complicating element of “practicability” that would make valid membership dependent, not only on county and area residence, but also on the further extrinsic issue of the practicability of obtaining members from within the area. We are of the opinion, therefore, that that regulation should be interpreted as directory, rather than mandatory. RESIDENTIAL DEFECT-NOT SUBJECT TO COLLATERAL ATTACK But, even if the statute be interpreted as mandatory in this respect, it is fundamental, well established law that public officials, holding an office under color of an appointment made or an election held in the manner required by law holds the office, if not de jure, at least de facto, and, as such, their eligibility, even if dependent on certain extrinsic statutory qualifications, such as residence, may not be collaterally challenged; the right and title of such de facto officers will be conclusively presumed unless and until they are ousted in a direct proceeding in the nature of quo warranto brought against them to determine their de jure right and title to the office. Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899); United States ex rel. Doss v. Lindsley, 148 F.2d 22, 23 (7th Cir.1945); Johnson et al. v. Manhattan Ry. Co., 61 F.2d 934 (2d Cir.1932); Rockingham County v. Luten Bridge Co., 35 F.2d 301 (4th Cir.1929); Hutchins v. Pac. Mutual Life Ins. Co. of California et al., 20 F.Supp. 150 (S.D.Cal.1937); United States ex rel." }, { "docid": "18259523", "title": "", "text": "mandatory in this respect, it is fundamental, well established law that public officials, holding an office under color of an appointment made or an election held in the manner required by law holds the office, if not de jure, at least de facto, and, as such, their eligibility, even if dependent on certain extrinsic statutory qualifications, such as residence, may not be collaterally challenged; the right and title of such de facto officers will be conclusively presumed unless and until they are ousted in a direct proceeding in the nature of quo warranto brought against them to determine their de jure right and title to the office. Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899); United States ex rel. Doss v. Lindsley, 148 F.2d 22, 23 (7th Cir.1945); Johnson et al. v. Manhattan Ry. Co., 61 F.2d 934 (2d Cir.1932); Rockingham County v. Luten Bridge Co., 35 F.2d 301 (4th Cir.1929); Hutchins v. Pac. Mutual Life Ins. Co. of California et al., 20 F.Supp. 150 (S.D.Cal.1937); United States ex rel. Watkins v. Commonwealth of Pennsylvania, 214 F.Supp. 913, 916 (W.D.Pa.1963). See also, Ensher, Alexander & Barsoom, Inc. v. Ensler, 238 Cal.App.2d 250, 47 Cal.Rptr. 688, 692 (1965); In re Bunker Hill Urban Renewal Project 1B, 61 Cal.2d 21, 37 Cal.Rptr. 74, 88, 389 P.2d 538 (1964); 67 C.J.S. Officers §§ 74 and 146, pp. 308, 446; 74 C.J.S. Quo Warranto §§ 1, 4, 7. The reason for this general rule is obvious, i. e., the uncertainty that would otherwise cloud all official public acts having to do with such matters as licenses, tax receipts, realty records, administrative decisions — even court judg ments. For example, the strange consequence would be that Selective Service orders made, not only in the particular pending case and future cases, but also in thousands of past instances, would be of doubtful validity. For, if the matter be jurisdictional and subject to collateral attack by any one affected, then it would follow that drafted members already in the armed forces might on habeas application claim unlawful detention in that their classification" }, { "docid": "21952911", "title": "", "text": "rely on Ex Parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899). In Ward the Court held that a person already convicted cannot, in a later habeas corpus proceeding, attack the validity of the title of the judge who tried him. In a similar case attacking the title of the state attorney the court held that the title of a person acting under color of law could not be challenged by a collateral habeas corpus proceeding. United States ex rel. Doss v. Lindsley, 148 F.2d 22, 158 A.L.R. 525 (7th Cir. 1945). The cases in which one person challenges the title of another are typified by Blackburn v. O’Brien, 289 F.Supp. 289 (W.D.Va.1968), in which one person alleged that she had title to the position held by another. Quo warranto was held proper as plaintiff’s action was “essentially one to determine the rights of both the claimant and the appointee to the postmastership in question. Such a proceeding sounds in quo warranto, the classic remedy by which to try the title to public office.” Every one of the above situations entails a civil suit. At no time has the doctrine of quo warranto been used to deny a person, in his criminal trial, the right to challenge an element of the prosecution’s case. Given this history one should be uneasy about applying quo warranto to a selective service criminal case. In the case before the court the United States has initiated the suit; it is not a civil suit brought in the name of the registrant. Defendant Machado does not seek to be installed as a member of Board No. 65. Defendant Machado does not even seek to oust the present members of Board No. 65. His concern is defending against a criminal charge by forcing the government to prove all the elements of its case. An essential element of that case is a proper induction order. Regulatory compliance is a necessary element to prove a proper induction notice. Defendant Machado is not interested in trying title to office or putting himself into office, he is only" }, { "docid": "17929706", "title": "", "text": "the county in which such local board has jurisdiction. It is apparently conceded that when the Chairman became a member of the Board, he lived within the City and County of Denver and within its territorial limits, and was therefore a de jure member of a de jure board. After he moved, he continued to exercise the duties of his office under color of title. He was therefore a de facto officer and his acts as such are valid so far as the public and third parties having an interest in them are concerned. And, neither his eligibility to appointment nor the validity of his official acts can be inquired into except in a proceedings brought for that purpose.” United States ex rel. Doss v. Lindsley, 7 Cir., 148 F.2d 22, 23, 158 A.L.R. 525; Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765; Johnson v. Manhattan Ry. Co., 2 Cir., 61 F.2d 934. It follows that the local Board was legally constituted; that it had jurisdiction over the person of the appellant when he registered; and that it did not lose it when one of the members moved from its territorial limits. In any event, we are certain that the appellant cannot attack the qualifications of its members in this proceedings. it The appellant also attacks the order of the Board requiring him to report for work at the Denver General Hospital “in the community in which he resides” without a showing that such work was “desirable in the national interest”, contrary to valid selective service regulations. § 1660.21(a), 32 C.F.R. From the evidence, the trial court found that the Board considered Jessen’s request to do work in the East for the Jehovah’s Witness sect of which he was a member, but found that such institutions were not qualified under the regulations; that they gave him an oppority to request work in a qualified institution outside the state and submitted him a list of such institutions; and that he never made any choice of eligible institutions. On these facts, the trial court rightly concluded that the" }, { "docid": "2960879", "title": "", "text": "could not grant the injunctive relief which appellant seeks. II. Appellant’s second contention is a two-pronged attack on the composition of his local board. He alleges that the entire board was appointed in violation of Selective Service Regulation § 1604.-52(c) because none of the members was a resident of the area in which the board has jurisdiction; he also alleges that all five members are white and that the area has a substantial black population, of which he is a member. As alleged, the attack on the composition of the board asks us to rule as a matter of law either (1) that all of the board’s induction orders are void because of the claimed violation of the regulation, or (2) that at least those orders affecting black registrants are void because the board members are all white. The residence requirement in the regulation has been construed as mandatory, United States v. Cabbage, 430 F.2d 1037, 1041 (6th Cir. 1970), but this court has held it to be merely directory, Czepil v. Hershey, 425 F.2d 251, 252 (7th Cir. 1970) cert. denied Czepil v. Tarr, 400 U.S. 849, 91 S.Ct. 44, 27 L. Ed.2d 87. Under either view, we are satisfied that the violation of the regulation would not be a sufficient basis for attacking the de facto authority of the board. See Ex parte Ward, 173 U.S. 452, 456, 19 S.Ct. 459, 43 L.Ed. 765; United States ex rel. Doss v. Lindsley, 148 F.2d 22 (7th Cir. 1945) Nor do we believe that induction orders affecting the members of one race are void as a matter of law because the board was composed of members of a different race. Presumably to avoid what would otherwise be a plain barrier to pre-induction review, appellant’s complaint carefully avoids any charge of discrimination in the processing of his own classification, or any charge of purposeful exclusion of blacks in the selection of the membership of the local board.15 If we were to assume that such charges are impliedly raised by the complaint, it would follow that the factual issues to be litigated" }, { "docid": "21952913", "title": "", "text": "demanding the proper criminal procedure, that is, the proof of each and every element of the charge. Quo warranto is inapplicable to such a proceeding. IV. DIRECT VERSUS COLLATERAL ATTACK. Intertwined with the notion of quo warranto is the concept of direct versus collateral attack. Although no draft cases have discussed quo warranto, a few of them have said one cannot make a collateral attack on the board’s actions in one’s criminal defense. Accepting the semantical distinction between “direct” and “collateral” leads one quickly into a quagmire. Nussbaum and the cases it relies on provide no way out of that quagmire, rather, they sink one deeper into the confusion. Two of the four cases relied upon by Nussbaum assume without argument that an attack on racial compo sition of a draft board is collateral and therefore they rely on the old habeas corpus cases such as Ex Parte Ward and Lindsley. The other two cases cited by Nussbaum give only cursory treatment to the attack on draft boards for improper residency, relying almost exclusively on the same traditional cases dealing with quo warranto. These draft cases fail to analyze the charge against the defendant, that is, the refusal to submit to induction. A person cannot be judged guilty of such charge unless there is a valid induction order. A prerequisite to a proper induction order is procedural due process. See Miller v. United States, 388 F.2d 973 (9th Cir. Dec. 29, 1967); United States v. Stiles, 169 F.2d 455 (3rd Cir. 1948). Therefore, draft board compliance with the applicable selective service regulations is a necessary element of the government’s case. Since Reg. 1604.52(c) is a mandatory requirement, proof of the board’s compliance with such regulation is necessary in order to convict the defendant. Consequently, Machado in his criminal defense must be allowed to show the failure of the draft board to comply with the residency regulation. There are numerous cases which allow as part of the criminal defense, proof of the failure of the board’s regulatory compliance. See Briggs v. United States, 397 F.2d 370 (9th Cir. 1968) (failure to" }, { "docid": "1235094", "title": "", "text": "this case Oshatz might not stand convicted of a felony had he been given the opportunity to execute the loyalty questionnaire. * * * [T]hat is sufficient prejudice to require reversal. See also Brede v. United States, 396 F.2d 155, modified on rehearing 400 F.2d 599 (9th Cir. 1968). This court considers the violation of 32 C.F.R. § 1604.51(c) to be a more fundamental violation of the registrant’s rights than those which called for reversal in Oshatz and Brede. There is a doctrine in administrative law which at first glance would cast doubt on the propriety of attacking the constitution of a local board through the device of raising the question as a defense to a criminal prosecution. In Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899), a prisoner attempted through habeas corpus to have his conviction set aside on the grounds that the commission of the judge who presided at the trial was defective. In the Ward case, and in several similar cases cited therein, the court held that “the title of a person acting with color of authority, even if he be not a good officer in point of law, cannot be collaterally attacked * * *.\" [Emphasis added]. The progeny spawned by the Ward case have included several Selective Service cases in which alleged unlawful constitution of a local board has been raised as a defense. In Jessen v. United States, 242 F.2d 213 (10th Cir. 1957) it was held that the fact that the Board chairman had moved out of the county prior to the issuance of an order to report for civilian work could not be raised as a defense in a prosecution for failure to report. In Du Vernay v. United States, 394 F.2d 979 (5th Cir. 1968) the court made a similar assertion by way of dictum. Id. at 983, n. 6; See Sellers v. McNamara, 398 F.2d 893 (5th Cir. 1968) (Separate opinion of Tuttle, J.). In United States v. Richmond, 274 F.Supp. 43 (C.D.Cal.1967) the court, after first holding that there is no requirement that board" }, { "docid": "21952912", "title": "", "text": "public office.” Every one of the above situations entails a civil suit. At no time has the doctrine of quo warranto been used to deny a person, in his criminal trial, the right to challenge an element of the prosecution’s case. Given this history one should be uneasy about applying quo warranto to a selective service criminal case. In the case before the court the United States has initiated the suit; it is not a civil suit brought in the name of the registrant. Defendant Machado does not seek to be installed as a member of Board No. 65. Defendant Machado does not even seek to oust the present members of Board No. 65. His concern is defending against a criminal charge by forcing the government to prove all the elements of its case. An essential element of that case is a proper induction order. Regulatory compliance is a necessary element to prove a proper induction notice. Defendant Machado is not interested in trying title to office or putting himself into office, he is only demanding the proper criminal procedure, that is, the proof of each and every element of the charge. Quo warranto is inapplicable to such a proceeding. IV. DIRECT VERSUS COLLATERAL ATTACK. Intertwined with the notion of quo warranto is the concept of direct versus collateral attack. Although no draft cases have discussed quo warranto, a few of them have said one cannot make a collateral attack on the board’s actions in one’s criminal defense. Accepting the semantical distinction between “direct” and “collateral” leads one quickly into a quagmire. Nussbaum and the cases it relies on provide no way out of that quagmire, rather, they sink one deeper into the confusion. Two of the four cases relied upon by Nussbaum assume without argument that an attack on racial compo sition of a draft board is collateral and therefore they rely on the old habeas corpus cases such as Ex Parte Ward and Lindsley. The other two cases cited by Nussbaum give only cursory treatment to the attack on draft boards for improper residency, relying almost exclusively on" }, { "docid": "1235095", "title": "", "text": "“the title of a person acting with color of authority, even if he be not a good officer in point of law, cannot be collaterally attacked * * *.\" [Emphasis added]. The progeny spawned by the Ward case have included several Selective Service cases in which alleged unlawful constitution of a local board has been raised as a defense. In Jessen v. United States, 242 F.2d 213 (10th Cir. 1957) it was held that the fact that the Board chairman had moved out of the county prior to the issuance of an order to report for civilian work could not be raised as a defense in a prosecution for failure to report. In Du Vernay v. United States, 394 F.2d 979 (5th Cir. 1968) the court made a similar assertion by way of dictum. Id. at 983, n. 6; See Sellers v. McNamara, 398 F.2d 893 (5th Cir. 1968) (Separate opinion of Tuttle, J.). In United States v. Richmond, 274 F.Supp. 43 (C.D.Cal.1967) the court, after first holding that there is no requirement that board membership be distributed along racial lines and finding that there was no evidence that any other constitution of the board was “practicable”, went on to note the Ward and lessen cases and to recite the proposition that the constitution of the board could not be challenged in the criminal proceeding. Id. at 60-61. A case apparently taking a less rigid approach is Haven v. United States, 403 F.2d 384 (9th Cir. 1968). After upholding the trial court’s finding that Jehovah’s Witnesses were not systematically excluded from board membership, the court added the following dictum: While this may dispose of the appeal, we prefer to rest our decision on a broader ground. We find no support in administrative law or in constitutional law for a contention that the composition of the membership of an administrative board * * * may be attacked by showing that certain groups or classes of persons, racial, religious or otherwise, have never been privileged to serve on such board. ****** [I]f the local board members have been appointed by the President" }, { "docid": "4029884", "title": "", "text": "the outset not to consider the merits of petitioner’s constitutional arguments because they are barred by the so-called de facto doctrine. Relying on the early case of Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899), the Government maintains that petitioner cannot challenge his conviction in collateral proceedings by asserting (for the first time) that Judge Cashin’s commission was involved. “ * * * [W]here a court has jurisdiction of an offence, and of the accused, and the proceedings are otherwise regular, a conviction is lawful although the judge holding the court may be only an officer de facto; and * * * the validity of the title of such judge to the office, or his right to exercise the judicial functions, cannot be determined on a writ of habeas corpus.” Id., at 454, 19 S.Ct. at 460. Moreover, the Government argues that even in 1955 petitioner could not have objected to a trial before Judge Cashin on the constitutional grounds asserted here, either in the District Court or in this Court on direct appeal from the conviction. After we heard argument in this appeal, however, the Supreme Court had occasion to re-examine the de facto doctrine. The issue was raised in two cases (considered together) involving the power of so-called Article I judges to participate in (or render) decisions of a court created under Article III of the Constitution. In one case, Glidden Co. v. Zdanok, 82 S.Ct. 1459 (1962) the question was whether Judge J. Warren Madden, then an active judge of the Court of Claims sitting by designation in this Court, could join in our decision of an appeal. In the other case, Lurk v. U. S., decided sub nom. Glidden Co. v. Zdanok, supra, the question was whether Judge Joseph R. Jackson, a retired judge of the Court of Customs and Patent Appeals sitting by designation in the United States District Court for the District of Columbia, could preside over a criminal trial. Although the constitutional issue had not been raised in either case for determination by the judges involved, the Supreme" }, { "docid": "18259524", "title": "", "text": "Watkins v. Commonwealth of Pennsylvania, 214 F.Supp. 913, 916 (W.D.Pa.1963). See also, Ensher, Alexander & Barsoom, Inc. v. Ensler, 238 Cal.App.2d 250, 47 Cal.Rptr. 688, 692 (1965); In re Bunker Hill Urban Renewal Project 1B, 61 Cal.2d 21, 37 Cal.Rptr. 74, 88, 389 P.2d 538 (1964); 67 C.J.S. Officers §§ 74 and 146, pp. 308, 446; 74 C.J.S. Quo Warranto §§ 1, 4, 7. The reason for this general rule is obvious, i. e., the uncertainty that would otherwise cloud all official public acts having to do with such matters as licenses, tax receipts, realty records, administrative decisions — even court judg ments. For example, the strange consequence would be that Selective Service orders made, not only in the particular pending case and future cases, but also in thousands of past instances, would be of doubtful validity. For, if the matter be jurisdictional and subject to collateral attack by any one affected, then it would follow that drafted members already in the armed forces might on habeas application claim unlawful detention in that their classification and induction was invalid if a board member, although a resident of the county, happened to reside outside of the particular area of the county over which the board had jurisdiction. This well established rule, concerning public officers, the validity of their acts and the manner in which their title to office can or cannot be challenged, has been invariably applied in principle to cases involving membership on Selective Service Boards. Jessen v. United States, 242 F.2d 213 (10th Cir.1957); DuVernay v. United States, 394 F.2d 979 (5th Cir.1968); Haven v. United States, 403 F.2d 384 (9th Cir.1968) (perhaps a dictum); United States v. Richmond, 274 F.Supp. 43 (C. D.Cal.1967). We know of no authority outside of this district holding otherwise. Nor does the legislative history of Section 460 suggest any Congressional intent or reason for departing from the collateral attack rule in Selective Service cases. That legislative history discloses only that the Congress preferred and intended a system of local citizen boards, rather than a widespread civil service administrative system — an objective which" } ]

[ { "docid": "22554457", "title": "", "text": "lost the income which it might have enjoyed, and has doubtless been thrown into embarrassments it would have escaped. The circumstances do not call for a severe application of the rules of law upon either side. Breaches of such conditions may be waived by the-grantor expressly or in pais. †Such waiver is expressed in-the. statutes relating to the subject, to which we have referred, except the act'creating the Transcontinental Company, and there it exists by the clearest implication.. That the act of incorporation and the land grant here in •question, were contracts, is too well settled in this court to require discussion. As such, they were within the protection of that clause of the Constitution of the United.States which declares that no State shall pass any law impairing the obligation of contracts. The ordinance of 1869, and the constitution adopted in that year, in so far as they concerthe question under consideration, are nullities, and may be laid out of view- When a State becomes a party to a contract, as in the case before us, the same rules of law are applied to her as to private persons under like circumstances. When she or her representatives ar<j properly brought into the forura of litigation; neither she nor they can assert any right or.immunity as incident to her political sovereignty'. A case more imperatively demanding the exercise of jurisdiction in equity could hardly be imagined than that' presented in this bill. Should the interposition invoked be refused; doubtles.s the reservation would speedily be thatched over with adverse claims. A cloud would not oidy be thrown upon the title of the company, but the time, litigation, labor, and expense involved in the vindication of its rights, would very greatly lessen the value of the grant and materially det lay the progress of the work it was intended to aid. The injury would be irreparable. It is the peculiar function of a court of- equity in a case like this to avert such results. It has been insisted that those holding adverse claims should have been brought into the case as parties." } ]

[ { "docid": "11974935", "title": "", "text": "262 U.S. 432, 43 S.Ct. 613, 67 L.Ed. 1065; Appleby v. New York, 271 U.S. 364, 46 S.Ct. 569, 70 L.Ed. 992; Coombs v. Getz, 285 U.S. 434, 52 S.Ct 435, 76 L.Ed. 866; Funkhauser v. Preston, 290 U.S. 163, 167, 54 S.Ct. 134, 78 L.Ed. 243; New York Rapid Transit Co. v. New York, 303 U.S. 573, 593, 58 S.Ct. 721, 82 L.Ed. 1024; Dodge v. Board, 302 U.S. 74, 58 S.Ct. 98, 82 L.Ed. 57. The questions touching the attacked statutes deserve deliberate examination, and relief by perpetual injunction or by declaratory decree may be found proper. The court did not abuse discretion in granting the preliminary injunction. Affirmed. HOLMES, Circuit Judge (specially concurring) . I am unable to concur in the holding that “what the bond contract was” is a federal question as to which the federal courts will exercise an independent judgment. The obligation of the contract, T think, was whatever the law of the state attached to the contract at the time it was made. Whether or not the obligation is within the protection of the contract clause of the federal constitution, and has been impaired in violation of the provisions thereof, are federal questions upon which the federal courts will make their own decisions. Solely because the district court did not abuse its discretion in granting the interlocutory injunction, and nothing else is essential to a decision at this time, I concur in the result." }, { "docid": "2237889", "title": "", "text": "(1937), the Court permitted an impairment of retirement benefits, but did so on the grounds that state law rendered those benefits \"mere gratuities” that did not give rise to vested contractual rights. Thus, Dodge is inapposite in this case where the benefits are a form of deferred compensation to which employees have enforceable contractual rights, see Zimmerman, 469 A.2d at 142 (\"[W]e have rejected the view that pension benefits are mere gratuities.... [I]t is the well settled law of this jurisdiction that the nature of retirement provisions ... is that of deferred compensation for services actually rendered in the past.”) (citations omitted), and does not alter the fact that nothing in the federal precedents blurs the clearly established contours of the rights under the federal Impairment of Contracts Clause which are set forth in the Pennsylvania cases. In this case the provision adopted after vesting was set forth in the state constitution whereas in the cases discussed above, the provisions purporting to infringe the right to benefits were adopted by statute or ordinance. However, it was clearly established that, “[a] state can no more pass a law violating the obligation of a contract by means of a convention than by its legislature, so a provision in a state constitution which prohibits the enforcement of a contract is void.” Fisk v. Police Jury of Jefferson, 116 U.S. 131, 135, 6 S.Ct. 329, 331, 29 L.Ed. 587 (1885) (citations omitted); accord McBride v. Retirement Bd. of Allegheny County, 330 Pa. 402, 199 A. 130, 132-33 (1938) (\"the Contract Clause of the Federal Constitution ... forbids impairment by the states, not only by statute, but also by amendment to ... the State Constitution”) (citations omitted). Moreover, nothing in the cases addressing retroactive statutory impairments of vested rights suggests that their holdings turn on the source of the retroactive law. Thus, the contours of the right against retroactive impairment were clearly established when appellants terminated Larsen’s benefits despite the lack of \"precise factual correspondence” between this case and those where the subsequently enacted provision was statutory. See Pro, 81 F.3d at 1292. . The" }, { "docid": "943739", "title": "", "text": "Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), Maria Santiago v. Corporacion de Renovacion, Etc., 554 F.2d 1210 (1st Cir. 1977), but it must be based on a valid cause of action alleged in the complaint. All that the complaint alleges, even taking the rejected motion to amend into consideration, is a breach of contract. The exclusive remedy for a breach of contract of this sort is damages for which the Commonwealth of Puerto Rico, and not the individual defendants, would be liable. Even if we assume that there could be a valid claim for specific performance, such performance would have to be the purchase of the books by the Department of Education of the Commonwealth of Puerto Rico. The law in this regard was solidified long ago. It is well settled that no action can be maintained in any federal court by the citizens of one of the states against a state, without its consent, even though the sole object of such suit be to bring the state within the operation of the constitutional provision which provides that “no state shall pass any law impairing the obligation of contracts.” This immunity of a state from suit is absolute and unqualified, and the constitutional provision securing it is not to be so construed as to place the state within the reach of the process of the court. Accordingly, it is equally well settled that a suit against the officers of a state, to compel them to do the acts which constitute a performance by it of its contracts, is, in effect, a suit against the state itself. Pennoyer v. McConnaughy, 140 U.S. 1, 9, 11 S.Ct. 699, 701, 35 L.Ed. 363 (1891). See also Murray v. Wilson Distilling Co., 213 U.S. 151, 29 S.Ct. 458, 53 L.Ed. 742 (1909). The district court was also correct in ruling that adding 28 U.S.C. § 1331 to the complaint did not avoid the jurisdictional impact of the eleventh amendment. The remedy for what appears to be an egregious breach of contract by the Department of Education of the Commonwealth of" }, { "docid": "2523207", "title": "", "text": "Supreme Court decisions refined this Contract Clause limitation on retroactivity of state statutes and held that on matters such as eminent domain (West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507, 12 L.Ed. 535 (1848)), and the basic police powers (Stone v. Mississippi, 101 U.S. 814, 25 L.Ed. 1079 (1880) and Manigault v. Spings, 199 U.S. 473, 480, 26 S.Ct. 127, 130, 50 L.Ed. 274 (1905)), retroactive application of statutes related to these powers were not subject to the Contract Clause limitation. In Sturges, 17 U.S. (4 Wheat.) 200, 201, supra, the Supreme Court concluded that although the Contract Clause precluded a state from enacting laws which impaired contracts, the state could modify available remedies for the breach of a contract. Later in Bronson v. Kinzie, 42 U.S. (1 How.) 311, 316, 317, 11 L.Ed. 143 (1843) the Supreme court placed a reasonableness test on those modifications as to whether they affected substantial rights of the parties. Although the courts have recognized the difference between a contractual obligation and a remedy, the distinction between them has tended to be obscure, and a term like “vested right” may be a eonclusory judgment after other analyses have led the court to its decision. In Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866 (1934), the Court reversed a state statute which affected the vested contract rights of third persons using both the Contract Clause and Due Process Clause. SUBSTANTIVE DUE PROCESS In the early 1930’s, the Supreme Court relied on the doctrine of “economic or substantive due process” and utilized the Contract Clause less frequently in order to find unconstitutionality. During the Great Depression, as the state and federal governments began to develop debtor relief legislation, numerous cases came before the Court. In Home Building & Loan Association v. Blaisdell, supra, the Supreme Court sustained a debtor relief law with retroac tive impact. A 1933 Minnesota law (Mortgage Moratorium Law of 1933) conferred authority on the Minnesota court to extend the period of redemption after a mortgage foreclosure sale provided that the mortgagor paid a reasonable rental" }, { "docid": "2237890", "title": "", "text": "was clearly established that, “[a] state can no more pass a law violating the obligation of a contract by means of a convention than by its legislature, so a provision in a state constitution which prohibits the enforcement of a contract is void.” Fisk v. Police Jury of Jefferson, 116 U.S. 131, 135, 6 S.Ct. 329, 331, 29 L.Ed. 587 (1885) (citations omitted); accord McBride v. Retirement Bd. of Allegheny County, 330 Pa. 402, 199 A. 130, 132-33 (1938) (\"the Contract Clause of the Federal Constitution ... forbids impairment by the states, not only by statute, but also by amendment to ... the State Constitution”) (citations omitted). Moreover, nothing in the cases addressing retroactive statutory impairments of vested rights suggests that their holdings turn on the source of the retroactive law. Thus, the contours of the right against retroactive impairment were clearly established when appellants terminated Larsen’s benefits despite the lack of \"precise factual correspondence” between this case and those where the subsequently enacted provision was statutory. See Pro, 81 F.3d at 1292. . The court explained that benefit forfeiture provisions are powerless to deter official misconduct that occurred before their enactment. See 461 A.2d at 598. The misconduct leading to Larsen's removal occurred well before the 1993 adoption of the amended section 16, bringing this case squarely within the rationale of Zimmerman 's holding that the public interest in enforcing benefit forfeiture provisions did not outweigh the constitutional interests in protecting vested contractual rights to retirement benefits against retroactive impairment. . Appellants also contend that they are entitled to qualified immunity because it was not clearly established that retirement medical benefits were to be treated in the same manner as other forms of retirement benefits. See br. at 11-12. We reject this contention. It was clearly established that \"the nature of retirement provisions ... is that of deferred compensation for services actually rendered in the past.” Zimmerman, 469 A.2d at 142-43 (citations omitted). Retirement medical benefits, like other retirement benefits, are an item of economic value offered in return for work performed, and thus fall squarely within the principles" }, { "docid": "562952", "title": "", "text": "213, 27 L.Ed. 936. Plaintiffs have no “vested” rights. Norman v. Baltimore & Ohio R. Co., 294 U.S. 240, 55 S.Ct. 407, 79 L.Ed. 885, 95 A.L.R. 1352, is a case clearly in point. There the gold clauses in private contracts were nullified. “There is no constitutional ground for denying to the Congress the power expressly to prohibit and invalidate contracts although previously made, and valid when made, when they interfere with the carrying out of the policy it is free to adopt.” Norman v. Baltimore & O. R. Co., supra, 294 U.S. pages 309, 310, 55 S.Ct. 416, 417. Justice Cardozo, dissenting, with whom Justices Brandéis and Stone concur, in Coombes v. Getz, 285 U.S. 434, 450, 451, 52 S.Ct 435, 439, 440, 76 L.Ed. 866 in part, said: “The section of the Constitution whereby contracts are secured against impairment is aimed at true agreements, and not at quasi contracts as distinguished from agreements implied in fact. * * * Either the petitioner took his cause of action subject to such infirmities or contingencies as were attached to it by the law of the slate of its creation, or he did not take anything.” In Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 1220, 86 L.Ed. 1682, private contract rights were under consideration. The employer relied upon the Fifth Amendment as protecting his contract right. The court said: “If overtime pay may have this effect (of removing burdens) upon commerce, private contracts made before or after the passage of legislation regulating overtime cannot take the overtime transactions ‘from the reach of dominant constitutional power.’ ” The fact that the Portal Act is retroactive as to the plaintiffs herein makes no difference under the circumstances shown. We are not dealing with a written or unwritten contract. “It may be said that this legislation is retroactive; and as applied to the case before us, it is so. But there is no constitutional inhibition against retrospective laws. Though generally distrusted, they are often beneficial and sometimes necessary. Where they violate no provision of the Constitution of the United" }, { "docid": "16109359", "title": "", "text": "federal Constitution provides that “[n]o State shall ... pass any ... Law impairing the Obligation of Contracts.” U.S. Const., art. I, § 10, cl. 1. The California Constitution provides that a “law impairing the obligation of contracts may not be passed.” Cal. Const., art. I, § 9. The California Supreme Court uses the federal Contract Clause analysis for determining whether a statute violates the parallel provision of the California Constitution. See Calfarm Ins. Co. v. Deukmejian, 48 Cal.3d 805, 258 Cal.Rptr. 161, 771 P.2d 1247, 1262-63 (1989) (holding that a statute that passed the federal test did not violate either the federal or state Constitutions). “Although the language of the Contract Clause is facially absolute, its prohibition must be accommodated to the inherent police power of the State.... ” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 410, 103 S.Ct. 697, 74 L.Ed.2d 569 (1983). The threshold inquiry in Contract Clause analysis is “ ‘whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.’ ” Id. at 411, 103 S.Ct. 697 (quoting Allied Structural Steel v. Spannaus, 438 U.S. 234, 244, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978)). “The severity of the impairment measures the height of the hurdle the state legislation must clear.” Allied Structural Steel, 438 U.S. at 245, 98 S.Ct. 2716. The more severe the impairment, the more searching the examination of the legislation must be. Id. In determining the extent of the impairment, a court must consider “whether the industry the complaining party has entered has been regulated in the past.” Energy Reserves, 459 U.S. at 411, 103 S.Ct. 697. If the industry has been heavily regulated, then the impairment is less severe because “ ‘[o]ne whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them.’ ” Id. (quoting Hudson County Water Co. v. McCarter, 209 U.S. 349, 357, 28 S.Ct. 529, 52 L.Ed. 828 (1908)). Even if a state regulation does constitute a substantial impairment of contract, it" }, { "docid": "16350531", "title": "", "text": "Const, art. I, § 10. The Perry plaintiffs contend that the Rhode Island General Assembly entered into a contract with plaintiffs when it offered them compensation in exchange for service pursuant to the incentive pay plan. The Rhode Island Laborers plaintiffs assert that the plan demonstrates a legislative intent to create an express contractual agreement between the parties. They also assert, in the alternative, that their collective bargaining agreement together with the language used in the plan, create an implied contract between the parties. Both groups of plaintiffs claim that the amendment of the plan impairs their contractual rights. In both matters, defendants assert that the statute does not create a contract. The Contract Clause reads: “No state shall ... pass any ... Law impairing the Obligation of Contracts.” U.S. Const, art. I, § 10. Originally, the Contract Clause was intended to protect private contracts. See Laurence H. Tribe, American Constitutional Law § 9-8, at 613 (2d ed. 1988). The Clause has been applied frequently, however, to contracts between states and private parties. McGrath v. Rhode Island Retirement Board, 88 F.3d 12, 16 (1st Cir.1996) (citing Fletcher v. Peck, 10 U.S. (6 Cranch.) 87, 3 L.Ed. 162 (1810)). This matter involves so-called ‘public’ contracts, or contracts to which the state or its agent is a party. See National Education Association-Rhode Island, et al. v. Retirement Board of the Rhode Island Employees’ Retirement System, et al., 890 F.Supp. 1143, 1151 (1995) (“NEA-RI”). A court must perform a three-part analysis in examining alleged impairments of contracts. McGrath, 88 F.3d at 16 (citing General Motors Corp. v. Romein, 503 U.S. 181, 112 S.Ct. 1105, 117 L.Ed.2d 328 (1992)). First, a court must determine if a contract exists. If so, the court must enquire whether the law in question impairs an obligation under the contract. If a contractual right has been impaired, the court must determine whether the impairment is substantial. If the impairment is substantial, the three-part test expands to encompass a fourth factor, and the court will enquire whether the impairment is reasonable and necessary to serve an important public purpose. See" }, { "docid": "12662591", "title": "", "text": "1340 (9th Cir.1981) (relief from provision of consent judgment must be considered under Rule 60(b) principles rather than under contract law analysis). Accord, United States v. Swift & Co., 286 U.S. 106, 115, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932) (consent decree). It contends that because a decree is no longer a contract but a judicial act, the state is now bound by the power of the court, not the contract. Strict application of that principle would, in the circumstances of this case, result in an ultra vires judicial attempt to bind a nonparty, the state, to the litigation, and would create an impermissible constitutional confrontation between the federal court and the state legislature. The Eleventh Amendment prohibits lawsuits against the state by private parties. To circumvent this prohibition when federal rights are violated, courts have resorted to the “legal fiction,” Vecchione v. Wohlgemuth, 558 F.2d 150, 156 (3d Cir.), cert.denied, 434 U.S. 943, 98 S.Ct. 439, 54 L.Ed.2d 304 (1977), of allowing injunctive suits against state officials rather than the state itself. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir.1982). By virtue of the supremacy clause, U.S. Const, art. VI § 2, officials are bound to do what is constitutionally mandated, even if the state objects. Under Ex parte Young, the state cannot force officials to violate federal law. 209 U.S. at 159-60, 28 S.Ct. at 453-54. That compliance with a decree enforcing federal law will have an ancillary effect on the state treasury is the inevitable and permissible consequence of Ex parte Young -type suits. Edelman v. Jordan, 415 U.S. 651, 667-68, 94 S.Ct. 1347, 1357-58, 39 L.Ed.2d 662 (1974). See Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (approving court order against state officials to disburse state funds for instituting educational program in desegregation suit). If general legal services for prisoners were required by the Constitution, we might be able to enforce this provision, notwithstanding the state’s protest. It would be a method of meeting constitutional standards," }, { "docid": "21615896", "title": "", "text": "for four separate reasons. Two can be quickly dismissed. First, it held that plaintiffs could not invoke Ex parte Young because that doctrine can only be invoked to enforce federal laws that are supreme law of the land. See Westside Mothers, 133 F.Supp.2d at 561-62. Since we held above that spending clause enactments are supreme law of the land, they may be the basis for an Ex parte Young action. Second, the district court held Ex parte Young is unavailable because under this doctrine a court lacks “authority to compel state officers performing discretionary functions.” Id. at 574. This correctly states the holding in Young, but misunderstands what it means by “discretion.” “An injunction to prevent [a state official] from doing that which he has no legal right to do is not an interference with the discretion of an officer.” Ex parte Young, 209 U.S. at 159, 28 S.Ct. 441 (quoted in Telespectrum, Inc. v. Public Service Com’n of Ky., 227 F.3d 414, 422 (6th Cir.2000)). Since the plaintiffs here claim that the defendants are acting unlawfully in refusing to implement mandatory elements of Medicaid’s screening and treatment program, they seek only to prevent the defendants from doing “what [they] have no legal right to do,” and their suit is permitted under Ex parte Young. Third, the district court asserts that Ex parte Young is unavailable because the state “is the real party in interest when its officers act within their lawful authority.” Westside Mothers, 133 F.Supp.2d at 562. It has two reasons for finding Michigan the real party in interest. Its first reason follows from its finding that Medicaid is a contract. If Medicaid were only a contract, then this would be a suit seeking to compel a state to specific performance of a contract. Such suits are barred under a nineteenth century Supreme Court case, In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216 (1887), which held that a “claim for injunctive relief against state officials under the Contracts Clause is barred by state sovereign immunity because the state [is] the real party at interest.”" }, { "docid": "15751329", "title": "", "text": "kinds of treatment, but clearly creates a binding obligation on government. That obligation is that states not pass laws impairing the obligations of contracts unless such laws serve a significant public purpose and the means chosen to accomplish this purpose are reasonable and appropriate. See United States Trust Co. of New York v. State of New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 1517-19, 52 L.Ed.2d 92 (1977); Sal Tinnerello & Sons, Inc. v. Town of Stonington, 141 F.3d 46, 52 (2d Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 278, 142 L.Ed.2d 230 (1998). Second, plaintiffs’ asserted interest is not too vague and amorphous to be beyond the competence of the judiciary to enforce. Rather, plaintiffs have a concrete interest in the contract that has been impaired. Courts certainly can grasp the obligations created by contracts (they do it all the time in breach of contract actions) and can enforce those interests by declaring the offensive legislation unconstitutional. Third, the Contract Clause was intended to benefit the plaintiffs herein. Like the Commerce Clause, the Contract Clause “of its own force imposes limitations on state [legislation] and is the source of a right of action in those injured by regulations that exceed such limitations.” Dennis, 111 S.Ct. at 872; Carter, 5 S.Ct. at 931 (“[T]he individual has a right to have a judicial determination declaring the nullity of the attempt to impair [the] obligation.”) (emphasis supplied); Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 2723, 57 L.Ed.2d 727 (1978) (“The severity of an impairment of contractual obligations can be measured by the factors that reflect the high value the Framers placed on the protection of private contracts.”); Surrogates, 940 F.2d at 771 (“[The Contract] [C]lause is ‘one of the few “rights-protecting” provisions in the original Constitution’, and has been called by one legal historian ‘the bulwark of American individualism against democratic impatience and socialistic fantasy.’ ” (quoting G. Stone, L. Seidman, C. Sunstein & M. Tushnet, CONSTITUTIONAL LAW 1428 (1986) and H. Maine, POPULAR GOVERNMENT 247-48 (1885))). Finally, the Supreme Court’s conclusion in Dennis that the" }, { "docid": "21049310", "title": "", "text": "1440 and Polish Nat. Alliance v. National Labor Relations Board, 322 U.S. 643, 64 S.Ct. 1196, 88 L.Ed. 1509, when for the first time the Supreme Court held that the business of insurance was interstate commerce. Prior to that time it had been generally believed, I think, that such business was not within the scope of the commerce clause and hence not subject to the Fair Labor Standards Act. Such was the background of my finding, already made, that under the terms of employment of the contracts here involved premiums for overtime were not provided and that the parties did not understand that the employment was covered by the Act. The plaintiffs contend that their right to the compensation for their services indicated by the Fair Labor Standards Act constituted a vested right protected by the Fifth Amendment from impairment by legislation enacted after the time when their services had been rendered even though they then, like the defendant, had not supposed that the Fair Labor Standards Act was applicable. This contention is predicated tipon the assumption that the contract of employment must be deemed to have incorporated the provisions of the Fair Labor Standards Act. The assumption seems in accord with the observation in Williston on Contracts, 3rd Ed., § 615, that “it is commonly said that existing laws form a part of a contract and are incorporated in it.” If the assumption above slated were warranted and if the relationship between the parties had been purely private and a matter of no public concern, I incline to believe that legislation, enacted after the formation of the contract and after its performance at least on one side, would not have been competent to impair the plaintiffs’ rights. Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866; Ettor v. Tacoma, 228 U.S. 148, 33 S.Ct. 428, 57 L.Ed. 773; Steamship Co. v. Joliffe, 2 Wall. 450, 17 L.Ed. 805; Treigle v. Acme Homestead Ass’n, 297 U.S. 189, 56 S.Ct. 408, 80 L.Ed. 575, 101 A.L.R. 1284; Lynch v. United States, 292 U.S. 571, 583, 54 S.Ct. 840," }, { "docid": "21041400", "title": "", "text": "organizations, and comparable facilities to which Federal financial assistance is extended. . For purposes of clarity, I note also that plaintiffs’ cause of action under § 1981 has no application in this action. 42 U.S.C. section 1981 forbids discrimination in making and enforcing contracts. Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Though in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), the Supreme Court held that § 1981 prohibits private schools from excluding children who are qualified for admission, solely on the basis of race, nothing in this case involves the making and enforcement of private contracts. Where an alleged act of discrimination does not involve the impairment of one of the specific rights under § 1981, the statute provides no relief. Runyon, 427 U.S. at 176, 96 S.Ct. 2586. Furthermore, actions under 42 U.S.C. § 1983 do not lie against a state because they are not considered “persons” for purposes of the statute. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) . The Declaratory Judgment Act of 1934 is codified at 28 U.S.C. §§ 2201 and 2202. . Article 3, Section 2, provides: “the judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ... to controversies between two or more states; between a slate and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens, or subjects.” .I note in conclusion that plaintiffs' reliance on Ex parte Young, 209 U.S. 123, 28 S.Ct 441, 52 L.Ed. 714 (1908) as an exception to sovereign immunity is misplaced. The Ex Parte Young doctrine has no bearing when, as here, the claims are brought directly against a state rather than against a state officer. Idaho v. Coeur d'Alene Tribe of Idaho, 521" }, { "docid": "23515039", "title": "", "text": "duties. See Edelman v. Jordan, 415 U.S. 651, 653, 677, 94 S.Ct. 1347, 1351, 1362, 39 L.Ed.2d 662 (1974). Therefore, inmates may maintain an action under § 1983 against the individual officers for prospective relief only. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (injunctive relief available under § 1983 against state official). B Berry is the only appellant whose claim for injunctive relief is before us. He asserts a protected interest in minimum wages under Arizona law. He contends that he seeks no more than the plaintiff in Piatt v. MacDougall, 773 F.2d 1032 (9th Cir.1985) (en banc), and that Piatt establishes a protected liberty interest in recovery of wages accrued under color of state law. In Piatt, we were concerned with a prisoner’s allegation that he had worked as part of a contract with a private entity and was therefore entitled to pay at least equal to the minimum wage under § 31-254. We held that the state had not deprived Piatt of a constitutionally protected liberty interest, but that he could not be denied the property right to compensation created by statute without a meaningful hearing at a meaningful time. Piatt, 773 F.2d at 1036. Berry’s request in this case is different, however, because he did not work for a private entity pursuant to a contract such that § 31-254’s obligation was ever triggered. A § 1983 plaintiff must allege more than a statutory basis for his claim; he must also allege facts which support the claim. Summary judgment is appropriate if “a party ... fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which the party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In order to show an entitlement under § 31— 254, a prisoner must show that he is working pursuant to “a contract ... with a private person, firm, corporation or association.” Ariz.Rev.Stat. § 31-254(A). We agree with the district" }, { "docid": "18650908", "title": "", "text": "as modified by Judge Clarie’s decision in Fitzpatrick. Under the logic of Bird and similar cases decided under Connecticut law, the plaintiffs’ relationships with the state with respect to their expected pensions are contractual in nature. This conclusion is confirmed by the application of basic and long-standing principles of contract law to the admitted facts of the instant case. The common law of contracts clearly protects, in various contexts, the type of reliance interest which, the defendants concede, the plaintiffs possessed prior to the enactment of the 1975 Act. See, e.g., Fisk v. Police Jury of Jefferson, 116 U.S. 131, 133-34, 6 S.Ct. 329, 330, 29 L.Ed. 587 (1885) (implied contract theory protects reliance interest of public officer who performs services on the basis of a promise of a salary level embodied in legislation); Restatement (Second) of Contracts §§ 90 (Tent. Draft No. 2, 1965), 45 (Tent. Draft No. 1, 1964). See generally 1A Corbin on Contracts §§ 193-207 (1963 ed.); Fuller & Perdue, The Reliance Interest in Contract Damages, 46 Yale L.J. 52, 337 (1936-37). Indeed, the courts of Connecticut have been in the forefront of this common law development, conferring the protection of the law of contracts on the reliance interests of promisees in positions like those of the plaintiffs here even before the first Restatement of Contracts was published. In State ex rel. Marsh v. Lum, 95 Conn. 199; 111 A. 190 (1920), the Supreme Court of Errors held that teachers who were promised a salary increase by a school board, and who relied in silence upon that promise, forbearing from exercising their options to leave their jobs, had a contractual right to the increase in pay. In the court’s words, the teachers “gave up something that was legally theirs, and the town has received the benefit of their surrender.” State ex rel. Marsh v. Lum, supra, 95 Conn, at 204, 111 A. at 192. This, the court held, brought the teachers’ case within the rule of Rice v. Almy, 32 Conn. 297, 304 (1864): “[I]f a man by a promise induces the promisee . . ." }, { "docid": "1294112", "title": "", "text": "powers reserved to the states; under the general constitutional right of access to the courts; under the article 1 prohibitions against ex post facto laws, bills of attainder and laws impairing contracts. We find that § 2212 does not violate the Constitution, and affirm. II. FIFTH AMENDMENT DUE PROCESS CHALLENGE Plaintiff contends that § 2212 deprives her of a vested cause of action against E G & G without due process of law. She asserts that the filing of a suit on an accrued common-law or state statutory cause of action gives her a vested property right in that action, and that Congress cannot retroactively abolish that cause of action and legislate the dismissal of plaintiff’s suit without violating due process. Plaintiff relies principally on Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866 (1932), and Ettor v. Tacoma, 228 U.S. 148, 33 S.Ct. 428, 57 L.Ed. 773 (1913). Plaintiff also contends that since Congress has denied plaintiff her right of access to the courts § 2212 must be subject to strict scrutiny review or an intermediate level of review to determine if Congress has justified its action. Finally, plaintiff claims that even under the least exacting standard of rational basis review the act cannot pass constitutional muster. A. Abolition of Vested Rights The Supreme Court has found in certain cases that vested rights created by statute cannot be abridged by a subsequent statute that effectively takes away accrued causes of action to enforce those rights. The principal cases striking down retroactive abridgment involved statutes that created rights “vesting” in: a corporate charter, Coombes v. Getz, 285 U.S. at 439-48, 52 S.Ct. at 435-38; real property, Ettor v. Tacoma, 228 U.S. at 155-58, 33 S.Ct. at 430-31; and a quasi-contract, Steamship Co. v. Joliffe, 69 U.S. (2 Wall.) 450, 456-58, 17 L.Ed. 805 (1864). Cf. Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 48 S.Ct. 194, 72 L.Ed. 303 (1928) (rights in a patent); Forbes Pioneer Boat Line v. Board of Comm’rs, 258 U.S. 338, 339-40, 42 S.Ct. 325, 325-26, 66 L.Ed. 647 (1922) (rights" }, { "docid": "11974934", "title": "", "text": "manner of laying, and enforcing and applying the taxes of the Everglades Drainage District. The changes may be in form only, causing no material injury in actual results, a question of fact. Certain conduct and assurances of the public officers are involved also. It would not be useful or seemly for us to express any opinion touching these State laws before the facts affecting their operation are finally ascertained. We think it plain, however, that Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, has no application to the Florida decisions made since the bonds were issued, unless in settling the meaning of the attacked Florida statutes. The federal courts will accept the construction of them made by the State Supreme Court. What the bond contract was, and whether the attacked statutes, thus construed, impair its obligation, are federal questions on which the federal courts will make their own judgment, inclining, to agreement with the State court in doubtful matters. Geoigia Ry. & Power Co. v. Decatur, 262 U.S. 432, 43 S.Ct. 613, 67 L.Ed. 1065; Appleby v. New York, 271 U.S. 364, 46 S.Ct. 569, 70 L.Ed. 992; Coombs v. Getz, 285 U.S. 434, 52 S.Ct 435, 76 L.Ed. 866; Funkhauser v. Preston, 290 U.S. 163, 167, 54 S.Ct. 134, 78 L.Ed. 243; New York Rapid Transit Co. v. New York, 303 U.S. 573, 593, 58 S.Ct. 721, 82 L.Ed. 1024; Dodge v. Board, 302 U.S. 74, 58 S.Ct. 98, 82 L.Ed. 57. The questions touching the attacked statutes deserve deliberate examination, and relief by perpetual injunction or by declaratory decree may be found proper. The court did not abuse discretion in granting the preliminary injunction. Affirmed. HOLMES, Circuit Judge (specially concurring) . I am unable to concur in the holding that “what the bond contract was” is a federal question as to which the federal courts will exercise an independent judgment. The obligation of the contract, T think, was whatever the law of the state attached to the contract at the time it was made. Whether or not the obligation" }, { "docid": "9835165", "title": "", "text": "follow the decision of the Alabama Supreme Court in Alabama v. Southern Surety Co., supra, and place the same interpretation on that Act as is placed on the federal Act by the federal courts. Burns Mortgage Co. v. Fried, 292 U.S. 487, 493, 494, 54 S.Ct. 813, 78 L.Ed. 1380. It follows that the sixty-day limitation contained in the 1927 Act became a limitation on the obligation of the surety on bonds executed pursuant to that Act. The subsequent enactment of the 1935 Act and the repeal of the 1927 Act in no wise affected that obligation. See United States Fidelity Co. v. United States for Use and Benefit of Struthers Wells Co., 209 U.S. 306, 28 S.Ct. 537, 52 L.Ed. 804; Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866; Cameron v. United States, 231 U.S. 710, 720, 34 S.Ct. 244, 58 L.Ed. 448; United States v. Schofield Co., C.C.E.D.Pa., 182 F. 240, affirmed in Title Guaranty & Surety Co. v. United States, 3 Cir., 187 F. 98. It is argued with much ability that appel-lee’s cause of action is not purely statutory; that it does not arise upon the statute, but upon the contractual liability created in pursuance of the statute; and that, although the Contract derives its being from the statute, the former immediately acquires an independent existence competent to survive the destruction of the statute. Coombes v. Getz, 285 U.S. 434, 442, 52 S.Ct. 435, 76 L.Ed. 866. The rule thus stated is in part applicable, but it does not support appellee’s contention. The contract as actually made is in fact competent to survive the destruction of the statute. Since the statute created a new liability and must, therefore, be read into the contract the surety’s contract was to pay, if its principal did not, the claims of the subcontractors, “Provided, that all actions against the surety * * * must be commenced within sixty days after complete performance of said [construction] contract and final settlement thereof.” This provision of the contract survived the repeal of the 1927 Act and was not affected" }, { "docid": "18650907", "title": "", "text": "in his or her job. If the effect of such a promise is “to induce the employee to refrain from quitting, and in reliance thereon he does refrain, then there is sufficient consideration to support an enforceable contract.” Borden v. Skinner Chuck Co., supra, 21 Conn.Supp. at 190, 150 A.2d at 610. In Bird and its progeny, the Connecticut courts held that an employee who relies upon an offer of deferred benefits to his or her detriment, and to the benefit of the employer who gains the employee’s valuable services and loyalty as a consequence thereof, has expectations which are protected by the law of contracts. The facts in the case at bar demonstrate the existence of precisely this type of reliance. The state has admitted that the plaintiff class consists entirely of persons who either accepted state employment, eschewing otherwise more lucrative job opportunities to work for Connecticut, in reliance upon the promises of pensions contained in pre-1975 law, or who remained in state service, foregoing other employment opportunities, in reliance upon the law as modified by Judge Clarie’s decision in Fitzpatrick. Under the logic of Bird and similar cases decided under Connecticut law, the plaintiffs’ relationships with the state with respect to their expected pensions are contractual in nature. This conclusion is confirmed by the application of basic and long-standing principles of contract law to the admitted facts of the instant case. The common law of contracts clearly protects, in various contexts, the type of reliance interest which, the defendants concede, the plaintiffs possessed prior to the enactment of the 1975 Act. See, e.g., Fisk v. Police Jury of Jefferson, 116 U.S. 131, 133-34, 6 S.Ct. 329, 330, 29 L.Ed. 587 (1885) (implied contract theory protects reliance interest of public officer who performs services on the basis of a promise of a salary level embodied in legislation); Restatement (Second) of Contracts §§ 90 (Tent. Draft No. 2, 1965), 45 (Tent. Draft No. 1, 1964). See generally 1A Corbin on Contracts §§ 193-207 (1963 ed.); Fuller & Perdue, The Reliance Interest in Contract Damages, 46 Yale L.J. 52, 337" }, { "docid": "562951", "title": "", "text": "54 S.Ct. 231, 239, 78 L.Ed. 413, 88 A.L.R. 1481. The only implied agreement here on the part of the parties was to live up to the Fair Labor Standards Act, as interpreted thereafter by competent authority. Neither employer nor employee at any time, at least up to 1946, expected payment of any compensation for these activities. We start with 1938. The nature of these activities are not of the type of services performed under unwritten or implied contracts of employment. In this connection it is to be said that plaintiffs sue to recover, not only for loss irom failure to pay for these activities, but also seek to recover liquidated damages to an equal amount. “The term ‘contract’ is used in the Constitution in its ordinary sense, as signifying the agreement of two or more minds, for considerations proceeding from one to the other, to do or not to do certain acts. Mutual assent to its terms is of its very essence.” Louisiana v. Mayor of New Orleans, 109 U.S. 285, 3 S.Ct. 211, 213, 27 L.Ed. 936. Plaintiffs have no “vested” rights. Norman v. Baltimore & Ohio R. Co., 294 U.S. 240, 55 S.Ct. 407, 79 L.Ed. 885, 95 A.L.R. 1352, is a case clearly in point. There the gold clauses in private contracts were nullified. “There is no constitutional ground for denying to the Congress the power expressly to prohibit and invalidate contracts although previously made, and valid when made, when they interfere with the carrying out of the policy it is free to adopt.” Norman v. Baltimore & O. R. Co., supra, 294 U.S. pages 309, 310, 55 S.Ct. 416, 417. Justice Cardozo, dissenting, with whom Justices Brandéis and Stone concur, in Coombes v. Getz, 285 U.S. 434, 450, 451, 52 S.Ct 435, 439, 440, 76 L.Ed. 866 in part, said: “The section of the Constitution whereby contracts are secured against impairment is aimed at true agreements, and not at quasi contracts as distinguished from agreements implied in fact. * * * Either the petitioner took his cause of action subject to such infirmities or contingencies" } ]

[ { "docid": "22665350", "title": "", "text": "wife and two children live in Dallas, that he faces a four-year sentence for his aggravated assault conviction, and that he had a history of working. The longest time MondragonSantiago had spent in jail before this offense was ninety days (for driving while intoxicated). The district court heard these arguments, engaged in a brief colloquy with defense counsel regarding MondragonSantiago’s failure to observe the conditions of his probation, and then allowed the defendant to speak for himself. After hearing Mondragon-Santiago state that he needed to be with his family, the district court asked him how he would accomplish that goal without entering the United States illegally. Mondragon-Sandiago responded that he would not be able to see his family if the government would not let him enter the country. The district court suggested that maybe his family could visit him, and then imposed a sentence of fifty months of imprisonment followed by three years of supervised release. MondragonSantiago’s attorney objected on the grounds that the sentence was “greater than necessary.” The district court overruled the objection. Mondragon-Santiago appealed. II. STANDARDS OF REVIEW On appeal, Mondragon-Santiago raises three arguments in favor of resentencing. First, he argues the district court committed a procedural error by failing to adequately explain his sentence. Second, he argues that his sentence is substantively unreasonable because the district court, at sentencing, did not have the benefit of the Supreme Court’s decisions in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which he claims alter sentencing law in fundamental ways. Mondragon-Santiago then argues, also under the rubric of substantive unreasonableness, that appellate courts should discard the presumption of reasonableness applied to within-Guidelines sentences when empirical studies do not undergird the Guidelines at issue. Finally, Mondragon-Santiago argues he was convicted and sentenced under the wrong statutory subsection. Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in which the Court rendered the Guidelines advisory only, appellate courts review" } ]

[ { "docid": "22920917", "title": "", "text": "BRISCOE, Circuit Judge. Saul Chavez-Diaz pleaded guilty to illegal reentry after deportation subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to thirty months of imprisonment. Chavez-Diaz appeals his sentence, contending that the district court miscalculated his guideline range and that his sentence is unreasonable because mitigating circumstances warranted a lower sentence. We conclude that while we do not have jurisdiction to review the district court’s discretionary decision to deny a downward departure, we have jurisdiction post-Booker to review the sentence imposed for reasonableness. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Chavez-Diaz’s sentence. I. On March 17, 2005, United States Border Patrol agents arrested Saul Chavez-Diaz and seven other individuals who were suspected of illegally crossing the United States-Mexico border near Columbus, New Mexico. A criminal records check revealed that Chavez-Diaz had been previously deported following a 1995 conviction in Wyoming state court. Chavez-Diaz pleaded guilty, without the benefit of a plea agreement, to one count of illegal reentry after deportation for an aggravated felony. The presentence report (PSR) recommended a total offense level of 21 and a criminal history category score of II, resulting in an advisory guideline range of 41 to 51 months. Specifically, the PSR calculated a base offense level of 8, U.S.S.G. § 2L1.2(a), added 16 levels because Chavez-Diaz’s prior 1995 conviction constituted a drug trafficking offense for which the sentence imposed exceeded thirteen months, U.S.S.G. § 2L1.2(b)(l)(A)(i), and subtracted 3 levels for Chavez-Diaz’s acceptance of responsibility, U.S.S.G. § 3E1.1. Further, Chavez-Diaz received three criminal history points based on his 1995 conviction. The PSR found nothing upon which to base a departure. At sentencing, the district court stated that it had reviewed the PSR, and that based on an offense level of 21 and a criminal history category I, Chavez-Diaz’s sentencing range was 41 to 51 months. Vol. Ill at 22. The district court, however, expressed concern over Chavez-Diaz’s decision to decline a Rule 11(c)(1)(C) plea agreement, which would have resulted in an offense level of 19. Id. at 2, 19. The district" }, { "docid": "4584135", "title": "", "text": "KELLY, Circuit Judge. Milton Gonzalez pled guilty to one count of illegal reentry subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced him to 36 months in prison, 10 months below the calculated sentencing guideline range. On appeal Gonzalez argues that his sentence is substantively unreasonable. We affirm. I. Background Gonzalez, a Mexican citizen, has been removed from the United States on several occasions. In 2001 he was convicted in state court of possession with intent to distribute amphetamine, an aggravated felony, and was sentenced to 5 years imprisonment. In 2002 he was convicted in federal court of illegal reentry after deportation and was sentenced to 6 months imprisonment. In 2005 Gonzalez was removed after serving the sentences for these convictions. Law enforcement officials found Gonzalez in this country again in 2012 after he was stopped for a traffic violation. After being taken into custody, Gonzalez explained that he returned to the United States to see his girlfriend and two young children when he thought he would lose his battle with cancer. Gonzalez was indicted for, and pled guilty to, one count of illegal reentry subsequent to an aggravated felony conviction. Because of Gonzalez’s prior drug conviction, the district court applied a 16-level enhancement to his base offense level pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(l)(A)(i) (2012). With this enhancement, the district court adopted a guidelines range of 46-57 months. However, the district court varied downward, and sentenced Gonzalez to 36 months II. Discussion In analyzing a district court sentence, we review first for procedural error and then for substantive reasonableness. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Because Gonzalez does not argue that the district court committed any procedural error, we look only at the substantive reasonableness of his 36-month sentence. United States v. O’Connor, 567 F.3d 395, 397 (8th Cir.2009). We review the substantive reasonableness of a sentence for abuse of discretion. Feemster, 572 F.3d" }, { "docid": "20730254", "title": "", "text": "review is “highly deferential, because the sentencing court is in a better position to find facts and judge their import under the § 3553(a) factors with respect to a particular defendant.” Fraga, 704 F.3d at 439 (internal quotation marks omitted); see Gall, 552 U.S. at 51, 128 S.Ct. 586 (“The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.”). Sentences within a properly-calculated guidelines range enjoy a presumption of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006). “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009). Diaz Sanchez argues his sentence is unreasonable in failing to reflect that he faced severe hardship in El Salvador, desired to return to the United States. to support his family, earned a sixteen-level, offense level enhancement for a remote, 2002 conviction for aggravated assault, and would serve, in his forty-month term of imprisonment, more time in prison than he did for any of his prior offenses. As described, however, the district court considered those arguments, prior to and during sentencing. We perceive no abuse of discretion in the district court’s conclusion that a bottom-of-the-guidelines sentence was appropriate in light of the concerns Diaz Sanchez and the government raised. See Cooks, 589 F.3d at 186. We do not find Diaz Sanchez’s sentence substantively unreasonable. CONCLUSION Concluding the sentence is neither procedurally nor substantively unreasonable, we AFFIRM. . Diaz Sanchez preserves for further review the argument that the guideline on which his sentence is based, U.S.S.G. § 2L1.2, is not owed a presumption of reasonableness because it is not founded on empirical evidence or study, acknowledging that our precedent forecloses the challenge. See Rodriguez, 660 F.3d at 232-33." }, { "docid": "7733820", "title": "", "text": "that although the district court’s Guidelines calculation was technically correct, consideration of the § 3553(a) factors necessitated a below-Guidelines sentence. The first argument cited § 3553(a)(2)(C) and claimed that a Guidelines range accounting for his 1985 conviction overstated the seriousness of his criminal history by elevating it to a Category 3, and thus would be greater than necessary to protect the public from further crimes of the defendant. The second argument cited § 3553(a)(2)(A) and claimed that a Guidelines range accounting for his 1985 conviction overstated the seriousness of his reentry offense by imposing a 16-level offense enhancement, pursuant to § 2L1.2(b)(l)(A). We pause for a point of clarity and underscore that Marin-Castano essentially split one argument into “two principal arguments” by dividing it between the horizontal (criminal history) and vertical (offense level) axes of the Guidelines Sentencing Table. After sentencing, MarinCastano appealed, claiming the district court committed procedural error by failing to properly address both of these arguments. In addition to procedural error, MarinCastano also claims the sentence imposed was substantively unreasonable because it failed to give proper weight to the age of Marin-Castano’s 1985 conviction, in accordance with the 18 U.S.C. § 3553(a) factors. We disagree. We find neither procedural error, nor substantive unreasonableness with regard to the district court’s imposed sentence of 46 months’ imprisonment. Because Marin-Castano argues that the court committed both procedural and substantive error, we employ more than one standard of review. First, we conduct a de novo review for any procedural error. United States v. Curby, 595 F.3d 794, 796 (7th Cir.2010). If we determine that the district court committed no procedural error, we review the sentence for substantive reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In this circuit, we do apply a presumption of reasonableness to all within-Guidelines sentences. It is not a binding presumption, but it applies in every case and it is the defendant’s burden to overcome it. See Gall, 552 U.S. at 51, 128 S.Ct. 586 (an appellate court may apply a presumption of reasonableness to" }, { "docid": "22724760", "title": "", "text": "more recent, the sentence resulting from the prior conviction more severe or ‘the need ... to protect the public from further crimes of the defendant’ otherwise great er.” Id. at 1058 (quoting 18 U.S.C. § 3553(a)(2)(C)). Given the limited scope of AmezcuarVasquez’s holding, the district court did not abuse its discretion in applying a sixteen-level enhancement for Valencia-Barragan’s prior conviction. Unlike the defendant in Amezcua-Vasquez, Valencia-Barragan was deported immediately after serving his sentence, and Valencia-Barragan’s conviction was comparatively more recent. Moreover, given the nature of Valencia-Barragan’s crime, and the fact that he allegedly also kissed, touched, and exposed himself to an eleven-year-old girl, “the need ... to protect the public from further crimes of the defendant” might logically be greater. 18 U.S.C. § 3553(a)(2)(C). The district court therefore did not abuse its discretion in imposing a within-Guidelines sentence. The sentence is neither procedurally nor substantively unreasonable. AFFIRMED. . Although Pelayo-Garcia addressed whether a statute of conviction constituted an \"aggravated felony” in the immigration context, 8 U.S.C. § 1101(a)(43), that distinction is immaterial. The analysis is the same for a \"crime of violence” in the sentencing context, U.S.S.G. § 2L1.2. See Pelayo-Garcia, 589 F.3d at 1013 n. 1; Medina-Villa, 567 F.3d at 511-12. . Although Estrada-Espinoza referred to those elements as defining \"sexual abuse of a minor” generally, we subsequently clarified that the Estrada-Espinoza definition \"encompassed statutory rape crimes only.” Medina-Villa, 567 F.3d at 514; accord Pelayo-Garcia, 589 F.3d at 1013-14. Rather than defining the universe of crimes constituting \"sexual abuse of a minor,” therefore, Estrada-Espinoza set forth a second generic definition. . Valencia-Barragan argues that, although he did not object on procedural grounds before the district court, presenting arguments relevant to mitigation should be sufficient to invoke the abuse of discretion standard. However, to the extent that Valencia-Barragan raised the issue of the § 3553(a) factors before the district court, he did so in challenging the substantive reasonableness of his sentence, arguing that the court should consider various factors in mitigation. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Because he raised" }, { "docid": "7556909", "title": "", "text": "EBEL, Circuit Judge. Defendant-Appellant Anastacio GarciaCaraveo appeals the sentence he received after pleading guilty to illegal reentry, following deportation, under 8 U.S.C. § 1326(a) and (b). The base offense level for this crime under the sentencing guidelines is eight. The PSR recommended a sixteen-point increase based on U.S.S.G. § 2L1.2(b)(l)(A)(ii), which provides that the court should increase a defendant’s offense level for illegal reentry by sixteen points if the defendant has been deported after committing a “crime of violence.” Without objection, the district court relied on Garcia-Caraveo’s prior conviction in California for robbery to sustain this increase. On appeal, Garcia-Caraveo argues that it was plain error for the court to rely on his California robbery conviction to sustain this enhancement, because that offense did not constitute a “crime of violence” under U.S.S.G. § 2L1.2(b)(l)(A)(ii). Exercising the jurisdiction granted us by 28 U.S.C. § 1291, we AFFIRM. I. Background Garcia-Caraveo pled guilty to a one-count information charging him with illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b). His base offense level for illegal reentry was eight. See U.S.S.G. § 2L1.2(a). The presentence investigation report (PSR) recommended adding sixteen offense levels based on U.S.S.G. § 2L1.2(b)(l)(A)(ii), which provides that the court should increase a defendant’s offense level for illegal reentry by sixteen points if the defendant has previously been deported after committing a “crime of violence.” The PSR noted that Garcia-Caraveo had been deported subsequent to a conviction for felony robbery in California and, therefore, was subject to this sixteen-point increase. The PSR further recommended a three-level reduction for acceptance of responsibility under § 3E1.1, so Garcia-Caraveo’s final recommended offense level was twenty-one. The PSR calculated Garcia-Caraveo’s criminal history category as III. His Guidelines sentence range was, therefore, 46-57 months. Garcia-Caraveo objected to the sixteen-level increase before the district court, but argued only that his conviction for felony robbery in California occurred approximately fifteen years before he was deported, and so that deportation should not be considered “subsequent to” his felony conviction. At his sentencing hearing, the district court agreed to modify the relevant language in the" }, { "docid": "15399424", "title": "", "text": "report assigned Hernandez a base offense level of eight pursuant to U.S.S.G. § 2L1.2(a). Sixteen levels were added pursuant to § 2L1.2(b)(1)(A)(ii) based on Hernandez’s prior North Carolina conviction for attempted common-law robbery. After receiving a three-level reduction pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility, Hernandez had a total offense level of 21. Hernandez scored a total of nine criminal history points and was placed in Criminal History Category IV. Thus, the report concluded that Hernandez’s advisory sentencing range under the Guidelines should be 57 to 71 months. U.S.S.G. Ch. 5, Pt. A. Hernandez objected to the report, in pertinent part, on the grounds that the 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii) was not warranted because his North Carolina conviction for attempted common-law robbery did not meet the Guidelines’s definition of a “crime of violence.” The district court overruled Hernandez’s objection. In addition, the district court found by a preponderance of the evidence that Hernandez had committed the offenses that he had been acquitted of at trial. The district court sentenced Hernandez to an above-Guidelines sentence of 84 months of imprisonment, as well as a three-year term of supervised release. This appeal followed. II. In reviewing the reasonableness of a defendant’s sentence, we “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). The district court’s “interpretation or application of the Sentencing Guidelines” is reviewed de novo, while its factual findings are reviewed for clear error. Id. Thus, this court considers de novo whether a defendant’s prior conviction qualifies as a “crime of violence” within the meaning of the Guidelines. United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir.2006). A defendant convicted of illegal reentry who also has a prior conviction for a “crime of violence” receives a 16-level upward adjustment under the Guidelines. U.S.S.G. § 2L1.2(b)(1)(A)(ii). “Crime of violence” is defined in the application notes: “Crime of" }, { "docid": "13516207", "title": "", "text": "substantive component.” Id. (internal quotation marks omitted). Here, however, Chavez-Suarez does not dispute the procedural reasonableness of his sentence. Indeed, he filed no objections to the presentence report’s sentencing calculations, which were adopted in full by the district court. Instead, he challenges only the substantive reasonableness of his sentence. “Substantive review involves whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” Id. (internal quotation marks omitted). If the sentence is within the correctly-calculated Guidelines range, it is considered presumptively reasonable on appeal, unless the defendant “rebut[s] this presumption by demonstrating that the sentence is unreasonable in light of the other sentencing factors laid out in § 3553(a).” United States v. Kristi, 437 F.3d 1050, 1055 (10th Cir.2006). Chavez-Suarez’s main contention on appeal is that the Sentencing Guidelines’ calculations effectively overstated, through imposition of a 16-level enhancement, the seriousness of his prior drug-trafficking conviction. But the district court expressly considered and rejected that contention, noting that Chavez-Suarez knowingly engaged in the trafficking of marijuana with the sole intent “to make money,” and not, as is the case with many defendants, to support their own personal drug use. ROA, Vol. 2 at 25. The district court also noted that Congress had specifically chosen to treat “drug distribution [a]s an aggravated felony.” Id. Lastly, the district court concluded “that the age of [the] previous conviction ... [was] not relevant” because as regards reentry it imposed a continuous “disability” on Chavez-Suarez, making “it a much more serious crime for him to return” to the United States. Id. at 27. Nothing about these rationales, or the district court’s ultimate rejection of Chavez-Suarez’s contention, constitutes an abuse of discretion. See United States v. Pruitt, 502 F.3d 1154, 1166 (10th Cir.2007) (“Selling ... illegal drugs is a serious offense that detrimentally impacts other people’s lives .... ”), vacated on other grounds,—U.S.-, 128 S.Ct. 1869, 170 L.Ed.2d 741 (2008); United States v. Carr, 939 F.2d 1442, 1448 (10th Cir.1991) (“Drug trafficking crimes are serious.... ”); United States v. Torres-Duenas, 461" }, { "docid": "22926162", "title": "", "text": "enhancement works some sort of injustice on the defendant.” Id. at 9. The court subsequently denied Mr. Alvarez’s motion for a statutory sentence, stating “there really is no case law in this circuit that supports that argument.” Id. It then sentenced him at the bottom of the guideline range, after also concluding that criminal category IV did not substantially over-represent the seriousness of his criminal history. Mr. Alvarez argues that his fifty-seven-month sentence is unreasonably high. DISCUSSION We review a criminal defendant’s sentence for reasonableness, deferring to the district court under the “familiar abuse-of-discretion standard of review.” Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “A district court abuses its discretion ‘when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.’ ” United States v. Beltran, 571 F.3d 1013, 1018 (10th Cir.2009) (quoting United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.), cert. denied, — U.S. -, 129 S.Ct. 428, 172 L.Ed.2d 310 (2008)). Reasonableness review has a procedural and a substantive component. United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir.2008). “We may not examine the weight a district court assigns to various [28 U.S.C.] § 3553(a) factors, and its ultimate assessment of the balance between them, as a legal conclusion to be reviewed de novo. Instead, we must ‘give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the [sentence imposed].” United States v. Smart, 518 F.3d 800, 808 (10th Cir.2008) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). A sentence imposed within the properly calculated advisory guideline range is entitled to a rebuttable presumption of reasonableness. United States v. Chavez-Suarez, 597 F.3d 1137, 1139-40 (10th Cir.), cert. denied, — U.S.-, 131 S.Ct. 286, 178 L.Ed.2d 188 (2010). Mr. Alvarez explicitly only challenges the substantive reasonableness of his sentence. Mr. Alvarez concedes that his sentence was not “arbitrary, capricious or whimsical.” He argues, instead, that his sentence is “manifestly unreasonable.” More specifically, Mr. Alvarez claims that “it was the [sixteen-level] enhancement [under USSG § 2L1.2(b)(l)(A)(i) ], not Alvarez’s" }, { "docid": "23608535", "title": "", "text": "PER CURIAM: Hector Romo-Villalobos appeals his convictions and 37-month total sentence for illegal reentry after a felony, pursuant to 8 U.S.C. § 1326(a) and (b)(1), and for illegal reentry after conviction of false representation, pursuant to 8 U.S.C. §§ 1325(a)(1) and 1329. On appeal, he argues that: (1) he should not have received a 16-level sentencing enhancement based on his Florida conviction for resisting an officer with violence, because Florida’s statute does not constitute a crime of violence; and (2) his 37-month sentence was unreasonable because the district court failed to grant him a variance based on sentencing disparities caused by the Middle District of Florida’s lack of a fast-track program. After careful review, we affirm. We review de novo whether a defendant’s prior conviction qualifies as a crime of violence under the sentencing guidelines. United States v. Palomino Garcia, 606 F.3d 1317, 1326 (11th Cir.2010). We review the sentence a district court imposes for “reasonableness,” which “merely asks whether the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.2008) (quoting Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). The relevant facts and procedural history are these. A grand jury indicted Romo-Villalobos on two counts, charging him with: (1) illegal reentry after conviction of a felony; and (2) illegal reentry after conviction of false representation. He pled guilty to both counts without a plea agreement. Prior to this indictment, Romo-Villalobos, a native and citizen of Mexico, had been removed from the United States twice before and had illegally reentered after each deportation. He was deported the first time after being convicted for false representation. He was deported the second time after being convicted in Florida for resisting an officer with violence, under Florida Statute § 843.01. In sentencing Romo-Villalobos for the instant illegal reentry offenses, the district court imposed a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) for having been previously deported after a conviction for a felony crime of violence, relying on the Florida conviction. The district court then imposed a 3-level reduction for acceptance of responsibility," }, { "docid": "3348886", "title": "", "text": "EBEL, Circuit Judge. On September 24, 1997, the government charged Ernesto Chavez-Valenzuela with unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326, and filed a Notice of Sentencing Enhancement due to a prior “ag gravated felony” for possession of a controlled substance. Chavez-Valenzuela subsequently entered a guilty plea to the illegal entry charge, and moved for a downward departure under United States Sentencing Guidelines (“USSG”) § 2L1.2, comment, n.5 (“Application Note 5”). The district court denied the motion, finding that Application Note 5 was inapplicable. Chavez-Valenzuela appeals. We affirm. We have jurisdiction to review the district court’s legal conclusion regarding the applicability of Application Note 5. See United States v. Castillo, 140 F.3d 874, 887-88 (10th Cir.1998). We review the district court’s interpretation and application of the Sentencing Guidelines de novo. See United States v. Pappert, 112 F.3d 1073, 1078 (10th Cir.1997). USSG § 2L1.2(b)(l)(A) mandates a sentencing enhancement of 16 levels for unlawful reentry after a criminal conviction for an aggravated felony. However, Application Note 5 provides that if (A) the defendant has previously been convicted of only one felony offense; (B) such offense was not a crime of violence or firearms offense; and (C) the term of imprisonment imposed for such offense did not exceed one year, a downward departure may be warranted based on the seriousness of the aggravated felony. For possession of a controlled substance, a Utah state court sentenced Chavez-Valenzuela to a term “not to exceed five years,” but stayed the sentence and placed him on 36 months’ probation on terms which included 45 days in jail. The district court, finding that Chavez-Valenzuela’s “term of imprisonment” under criterion (C) was five years, the maximum of his indeterminate sentence, held Application Note 5 to be inapplicable. On appeal, Chavez-Valenzuela contends that his “term of imprisonment” was 45 days, his actual time served. He analogizes “term of imprisonment” in Application Note 5 to “sentence of imprisonment” in USSG § 4A1.2(b). Although § 4A1.2(b)(l) defines “sentence of imprisonment” for purposes of computing criminal history as “the maximum sentence imposed,” § 4A1.2(b)(2) specifically excludes any" }, { "docid": "22744464", "title": "", "text": "spoken adequately and appropriately to the range of punishment that is available and should be utilized by the Court in this instance.” The court also noted that Campos had lost his permanent resident status and his opportunity to become a United States citizen. Campos contends on appeal that the sentence was unreasonable in light of the Supreme Court’s decisions in Gall v. United States, — U.S. —, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, — U.S. —, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). He asserts that our prior jurisprudence restricted the district court’s sentencing discretion in a manner incompatible with Gall and Kim-brough. He further argues that the enhancement Guideline, § 2L1.2(b)(1)(A), is flawed and should not be given the same weight as other Guidelines because it was not the product of empirical studies or data or the usual process employed by the Sentencing Commission in formulating Guidelines. Finally, he contends that the district court focused on an irrelevant factor, namely, that he lost his permanent resident status and opportunity to apply for citizenship. When the district court imposes a sentence within a properly calculated guidelines range and gives proper weight to the Guidelines and the 18 U.S.C. § 3553(a) factors, we “will give great deference to that sentence” and “will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines” in light of the sentencing considerations set out in § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005). A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006); see also Rita v. United States, — U.S. —, 127 S.Ct. 2456, 2466-68, 168 L.Ed.2d 203 (2007) (holding that an appellate court may apply a presumption of reasonableness to a within-guidelines sentence). The district court must make an individualized assessment based on the facts presented and must start by calculating the applicable guidelines range. Gall, 128 S.Ct. at 596-97. This individualized assessment “necessarily means that the sentencing court is free to" }, { "docid": "3428876", "title": "", "text": "EDITH H. JONES, Chief Judge: Miguel Chavez-Hernandez pleaded guilty, pursuant to a plea agreement, to being illegally present in the United States after being deported, pursuant to 8 U.S.C. § 1326. Over Chavez-Hernandez’s perfunctory objection, the district court increased his base offense level of eight by 16 levels, pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii), on the theory that his 2009 conviction for sexual activity with a minor in violation of Florida Statute § 794.05 was a “crime of violence.” Chavez-Hernandez’s criminal history category was II. The district court granted a three-level reduction for acceptance of responsibility and a further reduction sua sponte because the court concluded that his criminal history was over-represented. This resulted in an advisory sentencing guidelines range of 37 to 46 months of imprisonment. U.S.S.G. Ch. 5, Pt. A, Sen tencing Table. The district court sentenced Chavez-Hernandez to 37 months in prison and two years of supervised release. Chavez-Hernandez filed a timely appeal. Because he did not adequately preserve his objection to the sentence, plain error review applies. Although “plain error” occurred, we are not compelled to reverse under the circumstances here presented. Sentence affirmed. 1. Standard of Review When an error is preserved by specific objection in the trial court, this court reviews the district court’s findings of fact for clear error and its application of the federal sentencing guidelines de novo. United States v. Gharbi 510 F.3d 550, 554 (5th Cir.2007). Accordingly, we review the district court’s characterization of a defendant’s prior conviction de novo. United States v. Balderas-Rubio, 499 F.3d 470, 472 (5th Cir.2007), cert. denied, 552 U.S. 1215, 128 S.Ct. 1304, 170 L.Ed.2d 123 (2008). If, however, the defendant has failed to make his objection to the guidelines calculation sufficiently clear, the issue is considered forfeited, and we review only for plain error. Fed. R. Crim. P. 52(b); United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir.2009); United States v. Hernandez-Martinez, 485 F.3d 270, 272 (2007); United States v. Lopez, 923 F.2d 47, 50 (5th Cir.1991). Plain error review requires four determinations: whether there was error at all; whether it was plain or" }, { "docid": "22890761", "title": "", "text": "PER CURIAM: Jesus Garcia-Cardenas appeals the seventy-month sentence imposed after his guilty-plea conviction for illegal reentry following removal in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm and remand. I. The relevant facts are not disputed. On November 2, 2006, U.S. Border Patrol officers apprehended Garcia-Cardenas crossing into the United States from Mexico on foot. Garcia-Cardenas admitted that he was a Mexican citizen and that he was present in the United States illegally. Approximately two weeks later, a grand jury returned a one-count indictment charging Garcia-Cardenas with being a deported alien found in the United States in violation of 8 U.S.C. § 1326. The indictment specifically alleged that Garcia-Cardenas had violated both § 1326(a) and § 1326(b). It also alleged that Garcia-Cardenas had previously been ordered removed from the United States after July 12, 1989, the date of his prior conviction for voluntary manslaughter and attempted robbery. On October 15, 2007, Garcia-Cardenas pled guilty, without a plea agreement, before the district court. The probation officer submitted a presentence report (“PSR”) recommending a base offense level of eight pursuant to U.S. Sentencing Guidelines (“U.S.S.G”) § 2L1.2(a), for unlawfully entering or remaining in the United States; a sixteen-level upward enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii), for having been deported previously after a “crime of violence”; and a two-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(a). Based on these calculations and Garcia-Cardenas’s criminal history score, the PSR recommended a mid-range sentence of seventy months. Garcia-Cardenas objected to the PSR on the ground that section 2L1.2(b) represents an unreasonable exercise of judgment by the Sentencing Commission because it permits a prior conviction to be “double counted”' — • once as an enhancement of the base offense level, and once to calculate the defendant’s criminal history category. He also argued that the graduated statutory máximums set forth in § 1326(b) violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). At the sentencing hearing, the district court addressed each of Garcia-Cardenas’s" }, { "docid": "22926163", "title": "", "text": "States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir.2008). “We may not examine the weight a district court assigns to various [28 U.S.C.] § 3553(a) factors, and its ultimate assessment of the balance between them, as a legal conclusion to be reviewed de novo. Instead, we must ‘give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the [sentence imposed].” United States v. Smart, 518 F.3d 800, 808 (10th Cir.2008) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). A sentence imposed within the properly calculated advisory guideline range is entitled to a rebuttable presumption of reasonableness. United States v. Chavez-Suarez, 597 F.3d 1137, 1139-40 (10th Cir.), cert. denied, — U.S.-, 131 S.Ct. 286, 178 L.Ed.2d 188 (2010). Mr. Alvarez explicitly only challenges the substantive reasonableness of his sentence. Mr. Alvarez concedes that his sentence was not “arbitrary, capricious or whimsical.” He argues, instead, that his sentence is “manifestly unreasonable.” More specifically, Mr. Alvarez claims that “it was the [sixteen-level] enhancement [under USSG § 2L1.2(b)(l)(A)(i) ], not Alvarez’s offense-related conduct, that dictated his sentence. Such a scheme is not [a] substantively reasonable scheme.” Appellant’s Br. at 8. Indeed, he makes a broad challenge to the sixteen-level enhancement, asserting that there are “endemic problems with USSG § 2L1.2(b)(l)(A)(i),” Appellant’s Br. at 8, and that “nearly any sentence that relies on [that] guideline is manifestly unreasonable.” Id. at 9. Mr. Alvarez identifies “two primary shortcomings with § 2L1.2(b)(l)(A)(i)”: (1) the enhancement lacks “an articulated justification” and (2) the enhancement “creates unwarranted sentencing disparities.” Id. at 9-10, 16. We address each of his arguments in turn. I. Lack of Articulated Justification Mr. Alvarez explains the history and development of the sixteen-level enhancement and argues that the “Sentencing Commission has never explained why the 16-level enhancement exists nor how potential justifications — like concerns about recidivism — account for its design.” Id. at 10. Mr. Alvarez further argues that this lack of an explanation causes the “practical problem” in that “district courts cannot evaluate whether applying the enhancement effectively serves its intended purpose in a given case,”" }, { "docid": "3355981", "title": "", "text": "KANNE, Circuit Judge. Javier Garcia-Lopez was indicted and pled guilty to a violation of 8 U.S.C. § 1326(a) and (b) for illegal reentry into the United States following his previous deportation and removal. Based upon a 1996 armed robbery conviction, which led to Garcia-Lopez’s 1999 deportation, the pre-sentence investigation report recommended a sixteen-level sentencing increase under U.S.S.G. § 2L1.2(b)(l)(A)(ii) (2003). However, prior to the sentencing hearing, Garcia-Lopez obtained a judicial order vacating his 1996 conviction because of the state court’s failure to inform Garcia-Lopez during his plea colloquy of the possible immigration consequences stemming from a guilty plea, in violation of state law, see Wis. Stat. § 971.08(2) (1996). Consequently, at Garcia-Lopez’s August 21, 2003 sentencing hearing for his illegal reentry conviction, the district court found that because the 1996 conviction had been vacated, it could not serve as the basis for an enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii). The defendant was sentenced to thirty-seven months imprisonment, three years supervised release, and $1100 in fines and special assessments. The government appealed and for the following reasons, we vacate and remand for resentencing. I. Analysis A district court’s interpretations of the sentencing guidelines are reviewed de novo. United States v. De la Torre, 327 F.3d 605, 609 (7th Cir.2003). Under U.S.S.G. § 2L1.2(b)(l)(A)(ii), a sixteen-level increase applies in alien reentry cases “[i]f the defendant previously was deported ... after ... a conviction for a felony that is ... a crime of violence.” Garcia-Lopez does not assert that armed robbery is not a “crime of violence.” Thus, we need only address whether the sixteen-level enhancement applies when the underlying felony conviction was vacated on technical grounds after deportation but prior to a defendant’s sentencing for the illegal reentry in violation of 8 U.S.C. § 1326(a) and (b). Because both the plain language of the guideline text and its underlying justification support its application to Garcia-Lopez, we determine that the sixteen-level enhancement should have been applied to the defendant. First, the plain language of U.S.S.G. § 2L1.2(b)(l)(A)(ii) counsels in favor of its applicability. “When interpreting a provision of the sentencing guidelines, a court must" }, { "docid": "22057392", "title": "", "text": "that it is substantively unreasonable. As . a threshold matter, Rodriguez argues that the presumption of reasonableness should not apply to his within-guidelines sentence on appellate review because the guideline upon which it is based, U.S.S.G. § 2L1.2, is penologieally flawed and not the result of empirical evidence or study. These arguments are foreclosed by this court’s decisions in United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.2009) and United States v. Duarte, 569 F.3d 528, 529-81 (5th Cir.2009). Rodríguez further asserts that, even if the presumption of reasonableness applies, it is rebutted by the facts and circumstances of this case. Specifically, he argues that (1) the 12-level increase in his offense level was excessive because he committed the felony drug offense in 1990 and (2) the district court failed to accord sufficient weight to his cultural assimilation. This court reviews sentences for reasonableness in light of the sentencing factors in § 3553(a), engaging in a bifurcated analysis of the sentence imposed by the district court. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir.2009); United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005). Rodriguez does not contend that the district court’s decision is procedurally unsound. When there are no procedural errors, this court will then “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard” and will “take into account the totality of the circumstances.” Gall, 552 U.S. at 51, 128 S.Ct. 586. A sentence within the range suggested by the guidelines is entitled to a rebuttable presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.2006); see also Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (holding that an appellate court may apply a presumption of reasonableness to a sentence within a properly-calculated guidelines range). Rodriguez cites United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-58 (9th Cir.2009), for the contention that the rote application of a prior conviction to effect a guideline range enhancement may result in a" }, { "docid": "13516208", "title": "", "text": "engaged in the trafficking of marijuana with the sole intent “to make money,” and not, as is the case with many defendants, to support their own personal drug use. ROA, Vol. 2 at 25. The district court also noted that Congress had specifically chosen to treat “drug distribution [a]s an aggravated felony.” Id. Lastly, the district court concluded “that the age of [the] previous conviction ... [was] not relevant” because as regards reentry it imposed a continuous “disability” on Chavez-Suarez, making “it a much more serious crime for him to return” to the United States. Id. at 27. Nothing about these rationales, or the district court’s ultimate rejection of Chavez-Suarez’s contention, constitutes an abuse of discretion. See United States v. Pruitt, 502 F.3d 1154, 1166 (10th Cir.2007) (“Selling ... illegal drugs is a serious offense that detrimentally impacts other people’s lives .... ”), vacated on other grounds,—U.S.-, 128 S.Ct. 1869, 170 L.Ed.2d 741 (2008); United States v. Carr, 939 F.2d 1442, 1448 (10th Cir.1991) (“Drug trafficking crimes are serious.... ”); United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir.2006) (affirming as substantively reasonable a 41-month sentence for illegal reentry that was based, in part, on a sixteen-level enhancement resulting from a nearly twenty-year-old felony conviction). Chavez-Suarez next asserts that a substantially shorter sentence would have sufficed to deter him from future crimes. But the district court considered and rejected that argument as well, noting that Chavez-Suarez had entered the United States illegally on four prior occasions. The district court found it significant that the two most recent of those illegal reentries occurred after Chavez-Suarez had been convicted of the drug-trafficking offense and was thus “subject to being prosecuted federally for aggravated re-entry after a conviction.... ” ROA, Vol. 2 at 26. Further, the district court emphasized that Chavez-Suarez, “instead of responding to” his apprehension and deportation in 2002, which the district court termed a “close call,” “nonetheless decided that he would return to the United States.” Id. at 26-27. In my view, the district court again acted well within its discretion in rejecting Chavez-Suarez’s arguments. Chavez-Suarez’s final argument is" }, { "docid": "131083", "title": "", "text": "PER CURIAM: Appellant Jose Gerardo Ramos-Garcia (“Ramos-Garcia”) challenges the sentence imposed for his conviction for illegal re-entry into the United States after deportation. Specifically, he argues that the district court erred in finding that his Texas state conviction for burglary of a vehicle was an aggravated felony for purposes of enhancement pursuant to U.S.S.G. § 2L1.2. Finding no error, we affirm. TRIAL COURT PROCEEDINGS Ramos-Garcia was found guilty after a jury trial of one count of unlawful re-entry into the United States in violation of 8 U.S.C. § 1326. At sentencing the district court, applying U.S.S.G. § 2L1.2 (“Unlawfully Entering or Remaining in the United States”), calculated Ramos-Garcia’s base offense level at 8, enhanced it by 16 levels because of his previous Texas state court conviction for burglary of a vehicle and established his total offense level at level 24. Combined with his criminal history category VI, the resultant sentencing range was 100-120 months. The district court sentenced him to 120 months imprisonment, three years supervised release and a $50 special assessment. DISCUSSION How the Sentencing Guidelines apply to a particular conviction is a question of law, which this Court reviews de novo. United States v. Garcia-Rico, 46 F.3d 8, 9 (5th Cir.), cert. denied — U.S. -, 115 S.Ct. 2596, 132 L.Ed.2d 843 (1995). U.S.S.G. § 2L1.2 provides a base offense level 8. The guideline then states that: If more than one applies, use the greater: (1) If the defendant previously was deported after a conviction for a felony, other than a felony involving violations of the immigration laws, increase by 4 levels. (2) If the defendant previously was deported after a conviction for an aggravated felony, increase by 16 levels. U.S.S.G. § 2L1.2(b) (Nov.1995). Ramos-Garcia was convicted in Texas state court on June 30, 1994 for the offense of Burglary of a Vehicle. Because the state of Texas punished Ramos-Garcia’s burglary conviction by imposing a five years probated sentence and because this Court has ruled that Burglary of a Vehicle constitutes a crime of violence for purposes of guideline sentencing, the district court reasoned that Ramos-Garcia was subject" }, { "docid": "22744463", "title": "", "text": "PER CURIAM: Corando Campos-Maldonado (Campos) pleaded guilty to one count of unlawful reentry, in violation of 8 U.S.C. § 1326. The district court sentenced him to 57 months in prison, within the guidelines range. Campos now appeals. The presentence report (PSR) calculated the guidelines range as 57 to 71 months, which included a 16-level crime of violence enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A), based on Campos’s prior conviction for assault with a deadly weapon. Campos argued that the district court should impose a below-guidelines sentence of 24 to 30 months. He asserted that the 16-level enhancement overstated the seriousness of his prior offense, arguing (1) that the offense should have been treated as at most an aggravated felony rather than a crime of violence and, (2) that the offense was a youthful aberration. He raised other grounds for a non-guidelines sentence, including his subsequent history of non-violence and his lack of incentive to return to the United States. The district court indicated that it had considered Campos’s arguments but concluded that “the Sentencing Guidelines have spoken adequately and appropriately to the range of punishment that is available and should be utilized by the Court in this instance.” The court also noted that Campos had lost his permanent resident status and his opportunity to become a United States citizen. Campos contends on appeal that the sentence was unreasonable in light of the Supreme Court’s decisions in Gall v. United States, — U.S. —, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, — U.S. —, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). He asserts that our prior jurisprudence restricted the district court’s sentencing discretion in a manner incompatible with Gall and Kim-brough. He further argues that the enhancement Guideline, § 2L1.2(b)(1)(A), is flawed and should not be given the same weight as other Guidelines because it was not the product of empirical studies or data or the usual process employed by the Sentencing Commission in formulating Guidelines. Finally, he contends that the district court focused on an irrelevant factor, namely, that he lost his permanent resident status and" } ]

[ { "docid": "784272", "title": "", "text": "de novo. The arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate, [footnote omitted], Id., at 59-60, 94 S.Ct. at 1025. Although Alexander was a Title VII case, we see no reason to distinguish its holding in this case. In dual-motivation employment discrimination cases, the Supreme Court has held that the plaintiff has the initial burden of showing that his conduct was constitutionally protected and that this conduct was a substantial or motivating factor in the defendant’s decision to discharge him. The burden then shifts to the defendant to establish that it would have discharged the employee “even in the absence of the protected conduct.” Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). This “but for” test has been applied in § 1981 cases. East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977). Although under Alexander the arbitral decision is no bar to plaintiff’s claim, plaintiff has failed to meet his burden of establishing that racial discrimination was a substantial factor in the defendant’s decision to discharge him under Mt. Healthy. The only evidence which plaintiff has submitted to the court in support of his allegations is a letter from Bobby Kaigler, Compliance Officer of the Erie Human Relations Commission (EHRC), which states that plaintiff testified before the EHRC on behalf of black complainants who were dis charged by defendant and that “It is the belief of this office that Mr. James Liotta was terminated from his job because of his constant fight for ‘Equal Rights’ of all men.” (Plaintiff’s summary judgment exhibit 7n). This letter is not an affidavit and it has not been notarized. Consequently, the conclusory “belief” expressed in the letter, which is not based on personal knowledge, is insufficient to create or support an inference that racial discrimination played any part in plaintiff’s discharge. Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141 (3rd Cir. 1972). No genuine issue of material fact supporting plaintiff’s § 1981 claim has been" } ]

[ { "docid": "16454290", "title": "", "text": "and that the Company’s motion to dismiss should have been granted. II. The next issue we must consider concerns Liotta’s claim under 42 U.S.C. § 1981. As a threshold matter, however, we must first address the Company’s assertion that this claim is also time barred. As with Section 301, 42 U.S.C. § 1981 provides no explicit period of limitations and courts are bound to apply the most appropriate limitations period provided by state law. Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). This court, in Davis v. U. S. Steel Supply, 581 F.2d 335 (3d Cir. 1978), held that the six-year statute of limitations for contracts under Pennsylvania law applied to a Section 1981 claim of unlawful discharge. We therefore conclude that Liotta’s second cause of action under 42 U.S.C. § 1981 is not barred as untimely. With regard to the merits of Liotta’s Section 1981 claim, the district court granted the Company’s motion for summary judgment for the following reasons: The only evidence which plaintiff has submitted to the court in support of his allegations is a letter from Bobby Kaigler, Compliance Officer of the Erie Human Relations Commission (EHRC), which states that plaintiff testified before the EHRC on behalf of black complainants who were discharged by defendant and that “It is the belief of this office that Mr. James Liotta was terminated from his job because of his constant fight for ‘Equal Rights’ of all men.” (Plaintiff’s summary judgment exhibit 7n). This letter is not an affidavit and it has not been notarized. Consequently, the conclusory “belief” expressed in the letter, which is not based on personal knowledge, is insufficient to create or support an inference that racial discrimination played any part in plaintiff’s dis charge. Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141 (3rd Cir. 1972). No genuine issue of material fact supporting plaintiff’s claim has been presented by plaintiff’s evidence. Liotta v. National Forge Company, 473 F.Supp. 1139 at 1146 (W.D.Pa.1979) reprinted in App., at 45-46. Liotta claims, however, that he also submitted to the" }, { "docid": "22736640", "title": "", "text": "Justice Blackmun delivered the opinion of the Court. The question that confronts us in this case is whether the filing of a class action tolls the applicable statute of limitations, and thus permits all members of the putative class to file individual actions in the event that class certification is denied, provided, of course, that those actions are instituted within the time that remains on the limitations period. Respondent Theodore Parker, a Negro male, was discharged from his employment with petitioner Crown, Cork &- Seal Company, Inc., in July 1977. In October of that year, he filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that he had been harassed and then discharged on account of his race. On November 9, 1978, the EEOC issued a Determination Letter finding no reasonable cause to believe respondent’s discrimination charge was true, and, pursuant to § 706(f) of the Civil Rights Act of 1964 (Act), 78 Stat. 260, as amended, 42 U. S. C. § 2000e-5(f), sent respondent a Notice of Right to Sue. App. 5A, 7A. Two months earlier, while respondent’s charge was pending before the EEOC, two other Negro males formerly employed by petitioner filed a class action in the United States District Court for the District of Maryland. Pendleton v. Crown, Cork & Seal Co., Civ. No. M-78-1734. The complaint in that action alleged that petitioner had discriminated against its Negro employees with respect to hiring, discharges, job assignments, promotions, disciplinary actions, and other terms and conditions of employment, in violation of Title VII of the Act, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. The named plaintiffs purported to represent a class of “black persons who have been, continue to be and who in the future will be denied equal employment opportunities by defendant on the grounds of race or color.” App. to Brief for Petitioner 2a. It is undisputed that respondent was a member of the asserted class. In May 1979, the named plaintiffs in Pendleton moved for class certification. Nearly a year and a half later, on September 4,1980, the" }, { "docid": "16454291", "title": "", "text": "has submitted to the court in support of his allegations is a letter from Bobby Kaigler, Compliance Officer of the Erie Human Relations Commission (EHRC), which states that plaintiff testified before the EHRC on behalf of black complainants who were discharged by defendant and that “It is the belief of this office that Mr. James Liotta was terminated from his job because of his constant fight for ‘Equal Rights’ of all men.” (Plaintiff’s summary judgment exhibit 7n). This letter is not an affidavit and it has not been notarized. Consequently, the conclusory “belief” expressed in the letter, which is not based on personal knowledge, is insufficient to create or support an inference that racial discrimination played any part in plaintiff’s dis charge. Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141 (3rd Cir. 1972). No genuine issue of material fact supporting plaintiff’s claim has been presented by plaintiff’s evidence. Liotta v. National Forge Company, 473 F.Supp. 1139 at 1146 (W.D.Pa.1979) reprinted in App., at 45-46. Liotta claims, however, that he also submitted to the district court the charge he filed with the Equal Employment Opportunity Commission (EEOC) listing a number of instances where he encouraged black employees to file charges against the Company. The affidavit which was attached to his EEOC charge and which was also before the court, alleged that the Company discharged him in retaliation for his activities in support of the rights of black employees. Specifically, he averred: I have consistently attempted to eliminate discrimination as practiced by Respondent Employer against Black members of Local 1573 of the United Steelworkers of America. The Respondent Company systematically has violated the non-discrimination clause known as Appendix I of the collective bargaining agreement between National Forge and Local 1573. Some of the ways I opposed discrimination, included the following: I encouraged a large number of Union members to report their allegations of discrimination to the Erie Human Relations Commission; since I began duties as President of Local 1573 in October, 1975, I encouraged a number of Black workers to file charges with such Commission, and advised them of my" }, { "docid": "19818663", "title": "", "text": "the Union had failed properly to represent him, all on account of his race. He received a “right to sue” letter on May 3, 1976. In his affidavit opposing summary judgment, Tucker alleges that he was passed over for promotion for racially discriminatory reasons on several occasions, as recently as “around 1973.” He further alleges that the Company presently discriminates in assigning trucks to its various drivers, and that black truck drivers are assigned broken-down trucks, which results in these drivers receiving lower pay than Mexican-American and white drivers. James Haley (Haley), a black person, has worked for the Company as an automobile and truck mechanic, and has been a member of the Union’s bargaining unit, since 1950. He filed an EEOC charge against the Company on April 12, 1972, claiming that he was discriminated against because of his race in testing, promotion, wages, and work assignments. He received a “right to sue” letter on May 3, 1976. In his affidavit, Haley claims that as recently as December 12,1976, he was unfairly disciplined because of his race, in that he was written up for lateness to work while tardy whites were given only verbal warnings. He further claims that the Union has refused to help him process his resulting grievances. Cleotha Starks (Starks), a black person, began working for the Company on March 30,1973. On November 6, 1973, he filed an EEOC charge against the Company in which he alleged that the Company denied him a job transfer on account of his race. He was issued a “right to sue” letter on May 3, 1976. Starks incorporates by reference Bratton’s charges of racial discrimination, but alleges no facts to support a charge of racial discrimination against himself. Starks claims only that he received less favorable work assignments than others with less seniority, and that he was required to resign for falsifying his employment record. He claims that a white employee was not discharged for “allegedly” falsifying employment records, but he does not indicate whether the white worker’s “alleged” offense was actually proven. The Company’s affidavits offer credible, nonracial reasons for" }, { "docid": "4213697", "title": "", "text": "DECISION AND ORDER WARREN, District Judge. On May 22, 1974, plaintiff Ward E. Hardy commenced an action against Bu-cyrus-Erie Company on behalf of himself and all persons similarly situated alleging that the defendant company, together with United States Steel Workers of America, Local No. 1343 (hereinafter “Local 1343”), has engaged in racially discriminatory practices in violation of section 703, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 and section I of the Civil Rights Act of 1866, 42 U.S.C. § 1981. In particular, plaintiff charges that, by virtue of and pursuant to its collective bargaining agreement with Local 1343, the defendant company has established a promotional and seniority system whose design is to preserve a policy of limiting the employment and promotional opportunity of black employees and black applicants. Additionally, he cites harassment, demotion, discriminatory testing and discriminatory exclusion from apprenticeship programs jointly operated and maintained by Local 1343 and the defendant company, in redress whereof he seeks in-junctive relief and back pay. Defendant has responded to plaintiff’s complaint by the filing of a motion to dismiss the action pursuant to Rule 12(b)(7) of the Federal Rules of Civil Procedure, stating as grounds therefor plaintiff’s failure to join parties in whose absence complete relief cannot be accorded. That motion, which has been fully briefed by the parties, constitutes the subject of disposition herein. Plaintiff’s complaint discloses that a charge of employment discrimination was filed with the Equal Employment Opportunity Commission (hereinafter “EEOC”) against the defendant Bucy-rus-Erie Company on November 7, 1971. Thereafter, on December 9, 1971, the EEOC deferred plaintiff’s charge to the appropriate state agency and did not assume jurisdiction until sometime after March 21, 1972. Plaintiff then received a “Notice of Right to Sue” from the Milwaukee District Office of the EEOC on February 28, 1974, after which he commenced this action. Dismissal of an action for want of an indispensable party is authorized by Rule 19 of the Federal Rules of Civil Procedure. Under Rule 19 however, the term “indispensable” is conclusory in nature in the sense that it does not constitute" }, { "docid": "16454285", "title": "", "text": "OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge. The appellant, James J. Liotta, formerly President of the Local 1573 of the United Steelworkers of America, AFL-CIO (the Union), was discharged from his employment with the National Forge Company (the Company) on March 16, 1976. This followed his participation in a work stoppage at the Company’s Erie, Pennsylvania plant which began on March 3, 1976 and ended on March 11, 1976. Liotta filed a grievance pursuant to the terms of the collective bargaining agreement then in effect. His grievance was denied by an arbitrator on August 3, 1976. On March 16, 1978, he filed this action alleging first that his discharge violated the collective bargaining agreement in violation of Section 301 of the National Labor Relations Act, 29 U.S.C. § 185 and that the arbitrator’s contrary decision resulted from the Union’s breach of its duty of fair representation. Second, he claimed that the Company discharged him because of his espousal of the rights of the Company’s black employees, discriminating against him in violation of 42 U.S.C. § 1981. Liotta appeals from the entry of summary judgment for the Company. The Company cross appeals on the ground that Liotta’s complaint is barred by the applicable statutes of limitations. We conclude that his claim under Section 301 is time barred, that his claim under 42 U.S.C. § 1981 is not time barred, and that summary judgment was inappropriate on his Section 1981 claim because of the existence of material issues of fact. We will therefore affirm in part and reverse in part. I. The first question we must answer is whether Liotta’s Section 301 cause of action was untimely and therefore whether the Company’s motion to dismiss should have been granted. The Company’s motion was based on the ground that Liotta’s claims were barred by the three-month statute of limitations of the Pennsylvania General Arbitration Act, Pa.Stat.Ann. tit. 5 § 173 (Purdon 1963). The district court held that the six-year limitations period for actions upon a contract applied. We believe the district court erred. In UAW v. Hoosier Cardinal Corp., 383" }, { "docid": "10953458", "title": "", "text": "MEMORANDUM REGAN, District Judge. This matter is before the Court upon the motion of both defendants, United States Steel Products Corporation (the Company) and the United Steelworkers of America, Local 1622 (the Union), to strike the class action allegations from the plaintiffs’ complaint. The plaintiffs, Cornell Bishop and Roy Petty, both black employees, allege that the defendants have engaged in employment practices which discriminate against them because of their race. Both plaintiffs have filed charges with the Equal Employment Opportunity Commission, have obtained.letters to sue from that Commission, and have petitioned the Court for relief under 42 U.S.C., Section 2000e et seq. The plaintiffs further allege in their petition that they represent a putative class of black persons who have been discriminatorily affected by employment practices of the defendant Company and Union. Both plaintiffs have attached a copy of their charges with the EEOC to the complaint. Mr. Bishop contends that United States Steel discriminates against blacks as a class in hiring, in educational opportunities, and in discharge policies. Mr. Petty alleges that his layoff was caused because of discriminatory treatment and that blacks are prevented from obtaining higher level positions. The plaintiffs do not disclose how many unnamed members comprise this class. The complaint only provides that “there are questions of law and fact common to the Class; the Class is so numerous that joinder of all members is impracticable .”. Both defendants have represented to this Court that the maximum membership in this class must be twenty one. This figure comprises all the black employees of the total employment of sixty one at the St. Louis facility. Rule 23(a), Federal Rules of Civil Procedure, provides that one or more members may sue as representatives of a class only if (1) the class is so numerous that joinder of members is impracticable, (2) there are common questions of law and fact to the class, (3) the claims of the representatives are typical of the class, and (4) the representative will adequately protect the interests of the class. Since the plaintiffs allege that a class exists, the burden rests on" }, { "docid": "11570688", "title": "", "text": "of assistant supervisor in the duplicating section of the office services division at Prudential’s Southwestern Home Office in Houston, Texas. The other, that Prudential had discriminated against its black employees as a class by systematically failing to promote them within its work force and otherwise affording them the same conditions of employment as given to whites. A third issue — that the appellant was discharged in retaliation for filing a charge with the EEOC — was raised at trial. The district judge provisionally certified the plaintiff class to include all present and future black employees, other than part-time employees, wage band employees, and commissary workers, in the administrative section at Prudential’s Houston office, Pouncy v. Prudential Insurance Co. of America, 499 F.Supp. 427, 431 (S.D.Tex. 1980); see also id. at 442-45. After a 13 day trial limited to the issue of liability, in which both parties offered anecdotal, documentary, and statistical evidence, the district judge found inter alia that Pouncy had not been denied the promotion to assistant section supervisor due to his race, that Pouncy’s subsequent discharge by Prudential was not in retaliation for filing his charge of employment discrimination with the Equal Employment Opportunity Commission, and that Prudential had not maintained a system of promotion or advancement that had discriminated against blacks as a class. Id. at 466-67. In this appeal, Pouncy raises two contentions. First, he disputes the district judge’s conclusion that he was not the victim of racial discrimination. Second, he argues that the statistical evidence presented through his two expert witnesses coupled with the other evidence demonstrates that Prudential treats blacks, as a class, less favorably than whites. We hold that the subsidiary findings of fact made by the district judge lead to the conclusion that -Pouncy was neither the victim of racial discrimination by his employer nor received a retaliatory discharge. We also hold that the appellant’s evidence on the class claims, mostly statistics, failed to show that Prudential’s black employees were treated differently from white employees in terms of promotions, compensation, and in their use throughout Prudential’s work force. II. Individual Claims The" }, { "docid": "18312819", "title": "", "text": "being recalled for employment when certain jobs reopened at the plant during the early part of 1970, Huff filed a formal charge of discrimination with the Birmingham Area office of the Equal Employment Opportunity Commission (EEOC). In his charge he claimed that his termination and the subsequent failure of the company to recall him for employment as jobs reopened were motivated by racial considerations and by the fact that, as President of the local chapter of the NAACP, he had voiced complaints about the company’s failure to hire black women which eventually led to their being hired. On February 2, 1971, the Director of the Birmingham Area office of the EEOC notified Huff of his right to bring a civil action against the company within thirty days. Huff then commenced this suit against the company under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., on behalf of himself and the class he sought to represent. The class was composed of “black persons who are employed or might be employed by the defendant company who have been and continue to be or might be adversely affected by the practices complained of herein”. The complaint alleged that Huff and the class he sought to represent met those prerequisites imposed by Rule 23(a) of the Federal Rules of Civil Procedure which must necessarily be complied with before a class action can be maintained. In addition to repeating those allegations concerning the reasons for Huff’s termination and the company’s subsequent failure to recall him as presented in the formal charge filed with the EEOC, the complaint also alleged that the company discriminated against black workers as a class by restricting them to the lower paying, more menial jobs at the plant and by operating a discriminatory recall policy. As relief, he and the class he sought to represent asked that the company be permanently enjoined from engaging in these discriminatory practices against its black workers and that the company be forced to take certain affirmative steps to alleviate the effects of past discrimination. Huff, as an individual, asked" }, { "docid": "17666446", "title": "", "text": "since that time. On March 10, 1971, Fisher filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging racial discrimination against black and Spanish-American employees at the Dallas plant. An EEOC right to sue letter was issued on May 24, 1974 and Fisher instituted this Title VII action on July 15, 1974. Fisher brought the action “on his own behalf and on behalf of other persons similarly situated pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure.” The district court certified the case as a class action on behalf of all blacks employed by the Company since March 10, 1971, and all future black applicants at the Dallas plant. In his complaint, Fisher charged the Company with the following conduct: 1. The establishment of a promotion system which intentionally preserves the Company practice and policy of “limiting employment and promotional opportunities of black employees.” 2. The classification of all management positions as “white only,” and the attempt to exclude black employees from these positions. 3. The classification of security guard positions as “white only.” 4. Discrimination “against black employees in the area of job assignments.” 5. Discrimination “against black employees in terms of compensation.” 6. The failure to prohibit racial slurs against black employees by white employees. 7. The utilization of non-professionally developed ability tests “to deprive blacks of job opportunities.” 8. The failure to take affirmative action to remove the present effect of past discrimination against black persons. Fisher further charged that he was denied promotion to a lab position in March, 1971, solely because of his failure to score well on an ability test which bore no relationship to the skills required of the job. After a non-jury trial on the class liability issues, the district court found Company discrimination in hiring, promotions, and job assignments. HISTORICAL FRAMEWORK In July, 1972, the Company instituted an affirmative action program designed to make “equal opportunity . . . meaningful” at the Dallas facility. In the written plan, the purposes for the affirmative action program were outlined by the president of the Procter & Gamble Company:" }, { "docid": "16454292", "title": "", "text": "district court the charge he filed with the Equal Employment Opportunity Commission (EEOC) listing a number of instances where he encouraged black employees to file charges against the Company. The affidavit which was attached to his EEOC charge and which was also before the court, alleged that the Company discharged him in retaliation for his activities in support of the rights of black employees. Specifically, he averred: I have consistently attempted to eliminate discrimination as practiced by Respondent Employer against Black members of Local 1573 of the United Steelworkers of America. The Respondent Company systematically has violated the non-discrimination clause known as Appendix I of the collective bargaining agreement between National Forge and Local 1573. Some of the ways I opposed discrimination, included the following: I encouraged a large number of Union members to report their allegations of discrimination to the Erie Human Relations Commission; since I began duties as President of Local 1573 in October, 1975, I encouraged a number of Black workers to file charges with such Commission, and advised them of my knowledge of the best way to remedy the specific acts they were complaining of. I also fought the company on a day-to-day basis in trying to make conditions fair for all workers. I helped to take a case to arbitration on behalf of Black worker, Dennis Toliver. Shortly before my discharge, I had notified the Respondent Employer that two other grievances of Black workers (the grievances of Troy Johnson and Aaron Clanton) regarding discrimination claims, were going to be fought through the arbitration phase of the grievance procedure. I have appeared at a number of hearings of the Erie Human Relations Commission regarding the claims of discrimination by Black workers. Respondent Company has a history of unfair discharges of Black workers, and I have been active in opposing such practices. App., at 51-52. Our review of this document leads us to conclude that genuine issues of material fact are raised by Liotta’s specific allegations. These are matters that clearly are in dispute and they are material because if proven they could support a finding that" }, { "docid": "1194229", "title": "", "text": "has suffered any detriment on account of his race.” (at page 208) “In paragraph 6 of his complaint, plaintiff alleges that he was discharged because he refused to discriminate against black employees; further, he alleges he was ordered ‘not to associate with black employees’. While plaintiff makes these allegations concerning his allegedly restricted associations, he also avers that the defendant engaged in unlawful employment practices which operate to discriminate against black employees. Fairly stated, the gravamen of plaintiff’s complaint is that defendants have abridged his freedom to associate with persons of his own choosing.” (at page 208) “The employment practices which plaintiff attacks in his complaint are practices which result in disparate treatment of black employees. Plaintiff avers that he is a white citizen. The employment practices, subject to challenge in this action, have no impact upon plaintiff-. It appears that plaintiff is without standing, and, further, that plaintiff is not a ‘person aggrieved’ within the contemplation of the Act.” (at pages 208 — 209). Here, the plaintiff Holiday is claiming that because she was white as opposed to any other race she was the victim of employment discrimination. The plaintiff’s Exhibit A, the determination of the district EEOC office did hold “that there is reasonable cause, in part to believe that the Respondent have (sic) engaged in unlawful employment practice under Title VII of the Civil Rights Act of 1964, as amended, . ” I take cognizance of the policy of the EEOC which has held that discharging of a white employee for associating with blacks is racial discrimination and violative of Title VII. Decision of Equal Employment Opportunity Commission, Decision No. 71 — 969, December 24, 1970, ¶ 6193, C.C.H. EEOC Decisions 4328. There the Commission stated, inter alia, “There is reasonable cause to believe that Respondent Employer is engaged in an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964 by maintaining a working environment in which racial insults are countenanced.” (at page 4329) The Supreme Court has dictated in Griggs v. Duke Power Co., 401 U.S. 424, 433, 91 S.Ct." }, { "docid": "22209242", "title": "", "text": "WISDOM, Circuit Judge: This appeal presents issues of segregated facilities and programs that were long ago resolved in the courts of this country. The case also raises issues related to job assignment, transfer, promotion, training, recruitment, seniority, and testing; some of the answers to these questions seem clear, but others are still being formulated by legal processes. All of the issues, the settled and the unsettled, are intertwined. I. STATEMENT OF THE CASE On October 5, 1966, the named plaintiffs, Patrick James, Howard Harville and Louis Winston, black employees at Stockham’s Birmingham facilities, filed charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”), against Stockham Valves and Fittings, Inc. (“Stock-ham” or “company”), alleging that the company maintained racially segregated facilities; discriminated against black employees in job assignment, promotion, training, and transfer; and employed discriminatory testing, education, and age requirements. The EEOC found “reasonable cause” to believe that Stockham engaged in discriminatory practices and issued the plaintiffs a “right to sue” notice in February 1970. The plaintiffs brought this class action suit on March 16, 1970, within the thirty-day statutory period, against Stockham under the Civil Rights Act of 1866, 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The plaintiffs filed an amended charge of discrimination with the EEOC on June 8,1970, against the United Steelworkers of America, AFL-CIO (“Steelworkers”) and its Local 3036 (“Local” or “Union”), and later amended its complaint by adding the Steelworkers and the Local as defendants. The union defendants are alleged to have violated Title VII and 29 U.S.C. §§ 151 et seq. (“the duty of fair representation”). The district court referred the case to the EEOC for conciliation until June 1973 when the district court granted the plaintiffs’ motion to set aside the stay order. The court certified the class represented by the named plaintiffs under Rule 23(b)(1), F.R.Civ.P., to include all black hourly production and maintenance employees of Stockham who are currently employed and all black persons who have been so employed at Stock-ham from July 2, 1965, to the date" }, { "docid": "22790242", "title": "", "text": "feel that you do not have the qualifications needed for employment.” Parham, on April 6, 1967, filed a complaint with the Equal Employment Opportunity Commission (EEOC), pursuant to 42 U.S.C.A. § 2000e-5, charging the Company with racial discrimination in refusing him employment. Upon investigation, the EEOC found reasonable cause to believe that the Company had been guilty of a discriminatory employment practice. The EEOC then attempted to resolve the dispute through conciliation pursuant to 42 U.S.C.A. § 2000e-5(a), and requested the Company to sign a conciliation agreement. On November 7, 1967, the Company offered Parham a position as a lineman. Par-ham, then a college student, declined. The Company, thereafter, refused to execute any conciliation agreement with the EEOC, contending that Parham’s refusal to accept the offer of employment rendered the dispute moot, leaving nothing to conciliate. The EEOC then notified Parham of his privilege to prosecute an action in the federal district court, 42 U.S.C.A. § 2000e-5(e). Plaintiff Parham filed his complaint on April 25, 1968. On this appeal, Parham raises four contentions, each of which was rejected by the trial court: (1) the Company’s employment practices have discriminated against blacks generally and Parham in particular in violation of Title YII of the Civil Rights Act of 1964; (2) the Company’s policy and practices of securing new employees through recommendation and recruitment by existing workers and acceptance of walk-in applicants have discriminated against blacks; (3) the Company’s specific requirement that applicants for employment, except common laborers, possess a high school diploma or its equivalent has discriminated against blacks; and (4) the facts presented to the trial court entitled Parham to damages for lost wages as a lineman and injunctive relief for blacks as a class. “Reasonable cause exists to believe that Respondent is in violation of Section 703 (a) (1) of Title VII of the Civil Rights Act of 1964 by not hiring Charging Party, a Negro, solely because of a poor reference that was not really indicative of his potential at a Company job, although he fulfilled all other requirements for employment ; and in addition, no Negro males" }, { "docid": "12025083", "title": "", "text": "BAILEY BROWN, Circuit Judge. The principal question presented by this appeal is whether § 706(f)(2) of Title VII of the Civil Rights Act of 1964 (as amended), 42 U.S.C. § 2000e-5(f)(2), which authorizes the Equal Employment Opportunity Commission (“EEOC” or “the Commission”) to sue for temporary injunctive relief when a charge has been filed with the Commission and “the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of the Act,” permits the issuance of a preliminary injunction without the traditional showing of irreparable injury. The Commission brought this action requesting a preliminary injunction requiring the appellee, Anchor Hocking Corporation, to reinstate the intervenor, Earl Murry, to the position from which he had been discharged, allegedly in retaliation for his participation in proceedings before the EEOC and opposition to practices made unlawful by Title VII. The district court held that § 706(f)(2) required a showing of irreparable harm and that the Commission and Murry had failed to make such a showing. The EEOC and Murry appealed pursuant to 28 U.S.C. § 1292(a)(1). We agree with the district court and therefore affirm. The events leading up to this appeal began on August 10, 1979, when Daisy Flowers, president of the Lancaster, Ohio, chapter of the NAACP, filed a charge with the EEOC on behalf of Anchor Hocking employees. The charge contained broad allegations of racial discrimination against its employees by Anchor Hocking and specified three persons, including Earl Murry, as victims of discrimination. Murry, a black male, had been employed by Anchor Hocking for nearly ten years and was its highest ranking black employee. As “Corporate Director of Employee Affairs,” it was his duty to monitor Anchor Hocking’s equal employment program, including investigating, reporting on, and recommending resolution of employee complaints, and responding to outside complaints. He was the ombudsman for black employees. After Anchor Hocking received the Flowers charge, its general counsel questioned Murry about his involvement with the charge. Murry denied having authorized his name to appear therein. He was requested to take affirmative steps to disassociate himself" }, { "docid": "12301493", "title": "", "text": "bad faith in the present case because, under department policy, “[a]ny allegation of improper or inappropriate conduct by an employee ..., regardless of its apparent validity, is a complaint or inquiry.” (Emphasis added.) We thus find no error in the district court’s conclusion that Kuhn failed to make out a prima facie case of race discrimination. D. Kuhn’s EEOC charge does not allege a hostile-work-environment claim The Equal Employment Opportunity Commission (EEOC) charge reads as follows: On May 30, 2008, I went on a medical leave. My medical leave was necessitated by discrimination occurring on the job. I filed a charge of discrimination against a Lieutenant in March 2009, and in October 2009, went to the County Administrator with my complaint. On January 4, 2010 I was discharged. The reason given was economic conditions. They stated several Deputies were cut. I am aware of at least two (2) white Deputies who were off work for longer periods of time than me, who were not fired. I believe I have been discriminated against by being discharged, based on my race, black, my disability, and in retaliation for complaining of discrimination, in violation of Title AHI of the Civil Rights Act of 1964, as amended, and the Americans with Disabilities Act of 1990, as amended. Kuhn failed to check the box for “continuing action” and, in response to the prompt “Date(s) discrimination took place,” Kuhn listed only January 4, 2010 — the date of his termination. The district court held that Kuhn’s EEOC charge failed to put the EEOC on notice of a hostile-work-environment claim because he alleged only distinct instances of discrimination. Kuhn, 2012 AVL 1229890, at *8. On appeal, Kuhn argues that his hostile-work-environment claim was properly exhausted at the administrative level because it could reasonably be expected to grow out of the EEOC charge. The County responds by pointing out that this argument was never presented to the district court and is therefore waived. In addition, the County argues that Kuhn never presented any specific incidents of racially motivated harassment. Title AHI protection extends to a plaintiff who shows" }, { "docid": "16454293", "title": "", "text": "knowledge of the best way to remedy the specific acts they were complaining of. I also fought the company on a day-to-day basis in trying to make conditions fair for all workers. I helped to take a case to arbitration on behalf of Black worker, Dennis Toliver. Shortly before my discharge, I had notified the Respondent Employer that two other grievances of Black workers (the grievances of Troy Johnson and Aaron Clanton) regarding discrimination claims, were going to be fought through the arbitration phase of the grievance procedure. I have appeared at a number of hearings of the Erie Human Relations Commission regarding the claims of discrimination by Black workers. Respondent Company has a history of unfair discharges of Black workers, and I have been active in opposing such practices. App., at 51-52. Our review of this document leads us to conclude that genuine issues of material fact are raised by Liotta’s specific allegations. These are matters that clearly are in dispute and they are material because if proven they could support a finding that the Company’s actions against Liotta were motivated by a racial animus. In addition, contrary to the Company’s argument, it is clear that Liotta has set forth specific facts, not merely conclusory allegations of wrongdoing by the Company. Moreover, the Company has not denied that these documents were in fact before the district court as part of the record. Instead, the Company challenges the EEOC affidavit as not complying with the technical requirements of Fed.R.Civ.P. 56(e) in that it was not alleged to be based on personal knowledge. That this argument is specious is evident from a reading both of the affidavit and of Rule 56(e). First, Rule 56(e) does not require that the affiant state affirmatively that the averments are based on personal knowledge. Rather, the Rule provides: 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. A reading of Liotta’s EEOC affidavit shows that it was" }, { "docid": "19858865", "title": "", "text": "MEMORANDUM OPINION ROBERT W. PORTER, District Judge. On July 31, 1978, Defendant Braniff Airways, Inc. filed its motion to dismiss or in the alternative for summary judgment in the above styled and numbered cause. The Court has considered the Defendant’s motion, brief, and affidavits, and is of the opinion that summary judgment should be granted to the Defendant. The complaint arose out of Braniff’s termination of Mr. Davis, a black male employed as Flight Service Attendant, for a fighting incident on October 17, 1976 involving Mr. Davis and three white Braniff employees. Braniff discharged the four employees, who pursued grievance procedures through Braniff’s Discharge Board of Adjustment. The Board upheld the discharge on November 29, 1976. Mr. Davis filed a charge of employment discrimination with the Equal Employment Opportunity Commission (EEOC) on January 6, 1977, contending that Braniff had discharged him because of his race. On July 21, 1977, the EEOC issued its determination that “there is not reasonable cause to believe that Title VII of the Civil Rights Act of 1964, as amended, has been violated in the manner alleged . . . Should the Charging Party wish to pursue this matter further, the Charging Party may do so by filing a private action in Federal District Court within 90 days after receipt of this letter . . . ” Mr. Davis received the right to sue notice on July 22, 1977, and instituted suit in this court on October 21, 1977, 91 days later. His complaint alleged a class action on behalf of “Negroes, Spanish Surname and female persons who are now, have been, might have been or might become members of the International Brotherhood of Teamsters and who are now employed, were employed, might have been employed or might become employed by the Respondent at its plant and offices since July 2, 1965”. The complaint alleged that Braniff maintained various discriminatory policies and practices, as well as having terminated Mr. Davis on the basis of his race. I find that Mr. Davis’ individual claim of racial discrimination through his employment by Braniff is barred by the res" }, { "docid": "21994302", "title": "", "text": "U.S.C. § 2000e(d). 5. This action has been brought as a class action under F.R.Civ.P. Rule 23. 6. The number of persons, which plaintiffs define as within their proposed class is so numerous that joinder is impractical. Further, it appears that the claims of the representative plaintiffs are typical of the claims of the purported class and there appear to be common questions of law and fact. Finally, it appears to the Court that plaintiffs James and Winston are adequate representatives of the class. 7. The evidence reflects that plaintiffs have met the requirements of F.R.Civ.P. Rule 23(a) and their allegation is that the defendants jointly have acted on grounds generally applicable to a class of black employees. The facts support a finding that this action may be maintained as a class action under F.R.Civ.P. Rule 23(b)(1) for the purposes of resolving the allegations in the plaintiffs’ complaint for the following class: All black hourly production and maintenance employees of Stockham who are currently employed and all black persons who have been so employed at Stockham from July 2, 1965 to the date of trial. 8. Each of the named plaintiffs filed charges with the Equal Employment Opportunity Commission (“EEOC”) on October 5, 1966, which contained specific allegations of racial discrimination against Stockham. On June 8, 1970, an amended charge of discrimination was filed by plaintiff James with the EEOC which included Local 3036 and the defendant United Steelworkers of America as parties to the previously-filed charges. Plaintiffs received notices of their right to bring suit on or about February 16, 1970, and duly filed the complaint in this action within thirty days thereof, the proper statutory period. B. Background Matters (i) Stockham’s History 1. The Stockham Pipe and Fittings Company was founded in Birmingham in 1903 and originally manufactured only simple castings and cast iron pipe fittings. The Company moved to its present location in 1918. Stockham has provided free medical and dental services to all its employees since that time, and in 1919, established a branch of the YMCA at Company expense to serve as a center of" }, { "docid": "2083156", "title": "", "text": "SPROUSE, Circuit Judge: This is an appeal by the plaintiffs from summary judgment against them on their claims of employment discrimination. The International Woodworkers of America, its affiliate Local 5-346, Richard T. Truitt, Florence Bennett, and Harriet P. Dennis filed this action against the Chesapeake Bay Plywood Corporation (Chesapeake Bay) under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Plaintiffs sued individually and as representatives of all blacks and females who are or have been victims of Chesapeake Bay’s alleged race- and sex-based discriminatory employment practices. The district court, on the basis of the pleadings and discovery material, but without a hearing, denied class certification. It also held that the Union lacked standing under Article III of the United States Constitution to litigate the employment discrimination claims of its members. The court disqualified James E. Youngdahl, one of plaintiffs’ attorneys, from participation in the trial of the case when it became evident that he “ought to testify” on behalf of his client the plaintiff Union. Finally the court entered summary judgment in favor of Chesapeake Bay, finding that there was no genuine issue of material fact re specting any of the individual plaintiffs’ claims of employment discrimination. Plaintiffs urge as error each of these rulings. I. FACTS On May 29, 1975, the plaintiffs filed a charge of discrimination against Chesapeake Bay with the Equal Employment Opportunity Commission (EEOC). The charge asserted in general terms that Chesapeake Bay discriminated against blacks and women and that the higher paying, more desirable jobs, including supervisory positions, were disproportionately occupied by white males. Three years later the EEOC found reasonable cause to believe the charge was true. Administrative reconciliation efforts failed, and this suit was filed. The complaint alleges that Chesapeake Bay discriminates against blacks and women in hiring, job assignments, promotions, transfers, training programs, discipline, and general work conditions. The company’s alleged discriminatory practices are said to have resulted in the concentration of white males in certain job categories and blacks and females in other job categories, creating substantial race- and" } ]

[ { "docid": "22747419", "title": "", "text": "actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved. The de minimis rule can doubtless be applied to much of the walking time involved in this case, but the precise scope of that application can be determined only after the trier of facts makes more definite findings as to the amount of walking time in issue. (4) The employees proved, in addition, that they pursued certain preliminary activities after arriving at their places of work, such as putting on aprons and overalls, removing shirts, taping or greasing arms, putting on finger cots, preparing the equipment for productive work, turning on switches for lights and machinery, opening windows and assembling and sharpening tools. These activities are clearly work falling within the definition enunciated and applied in the Tennessee Coal and Jewell Ridge cases. They involve exertion of a physical nature, controlled or required by the employer and pursued necessarily and primarily for the employer’s benefit. They are performed solely on the employer’s premises and are a necessary prerequisite to productive work. There is nothing in such activities that partakes only of the personal convenience or needs of the employees. Hence they constitute work that must be accorded appropriate compensation under the statute. See Walling v. Frank, 62 F. Supp. 261; Philpott v. Standard Oil Co., 53 F. Supp. 833. Here again, however, it is appropriate to apply a de minimis doctrine so that insubstantial and insignificant periods of time spent in preliminary activities need not be included in the statutory workweek. The master did not deny that such activities must be included within the employees’ compensable workweek or that the evidence demonstrated that the employees did in fact engage in such activities. He denied recovery solely because the amount of time taken up by the activities and the proportion of it spent in advance of the established starting time had not been proved by the employees with any degree of reliability" } ]

[ { "docid": "16803660", "title": "", "text": "officers must be compensated for donning and doffing their uniforms and gear. While straying from the Supreme Court’s context-specific principles, the majority’s approach will in effect provide little actual guidance. II Applying a context-specific approach to the Mesa officers’ claims, I agree with the majority that the time officers spend donning and doffing their uniforms is not compensable. I would hold, however, that the time spent donning and doffing the protective gear is compensable, subject to a de minimis analysis. A Where uniforms, are concerned, we start with the baseline understanding that changing clothes under “normal conditions” is a non-compensable preliminary or postliminary activity under the Portal-to-Portal Act. Steiner, 350 U.S. at 249, 76 S.Ct. 330. For clothes changing to become compensable in this case, it must be integral and indispensable to policing, meaning that it is necessary to the principal policing activities and done for the benefit of the employer. See Alvarez, 339 F.3d at 902-03. In the cases where donning and doffing a “uniform” has been found compensable Steiner and Ballaris — the uniform performed a job-related function other than merely identifying the wearer with a particular occupation. In Steiner, the “old but clean work clothes” provided by the employer and worn by the employees helped protect workers from lead oxide poisoning. 350 U.S. at 250-51, 76 S.Ct. 330. Clothes changing also helped the employees avoid injury related to severe sulphuric acid burns. Id. at 250, 76 S.Ct. 330. In Ballons, some employees were required to wear a uniform consisting of a polo shirt, pants, and shoes under their protective bunny suit. 370 F.3d at 903-04. The uniform, according to the employee manual, was necessary for many reasons, including to “limit potential cleanroom contamination from the clothing worn under the cleanroom suits.” Id. at 904. The uniform aided the manufacture of silicon wafers by limiting air-borne impurities introduced through street clothes. Id. at 903. In both Steiner and Ballons, it was the functional role of the uniform, not the fact that it identified the employee, that triggered compensability. The Mesa officers’ uniforms identify them as police officers, and" }, { "docid": "15895122", "title": "", "text": "OPINION AND ORDER BARBARA B. CRABB, District Judge. This case presents a straightforward question: does the Fair Labor Standards Act, 29 U.S.C. §§ 201-219, require defendant Kraft Foods Global, Inc., to pay its employees for time they spend putting on and taking off items of safety and sanitation equipment that defendant’s policies and federal law require the employees to wear? Plaintiffs contend that they are entitled to compensation because donning and doffing the equipment constitutes “work” under the FLSA. Although defendant does not dispute plaintiffs’ basic characterization, it argues that the work is not com-pensable under several of the statute’s exceptions involving “preliminary” and “postliminary” activities, “changing clothes” and “de minimis” acts. In addition to their claim under the FLSA, plaintiffs assert state law wage and hour claims under Wis. Stat. §§ 109.03 and 103.02, as well as a claim for violations of Wis. Admin. Code §§ DWD 272.10 and 274.06, which impose requirements for employer record keeping. Defendant contends that plaintiffs’ state law claims are barred under several theories of preemption and that Wisconsin law does not recognize a private right of action for plaintiffs’ record keeping claim. Plaintiffs filed this suit as a purported class action but they have not yet moved for class certification. They have stipulated with defendant to refrain from seeking class certification until the court resolves the defendant’s motion for summary judgment. Having reviewed the parties’ submissions, I conclude that defendant’s motion for summary judgment must be denied in most respects. On the current record, I cannot conclude as a matter of law that the donning and doffing of the equipment at issue in this case is excluded from the protections of the FLSA. With respect to plaintiffs’ state law claims, none of defendant’s preemption arguments is persuasive. However, because plaintiffs have failed to show that they have a right to sue for enforcement of the record keeping requirements, I will grant defendant’s motion for summary judgment with respect to that claim. From the parties’ proposed findings of fact and the record, I find the following facts to be undisputed. UNDISPUTED FACTS Defendant Kraft" }, { "docid": "15895125", "title": "", "text": "may be disciplined for failing to wear this equipment. Employees must put on some of these items before clocking in. Employees retrieve and put on cotton frocks or career clothes and steel-toed shoes or sanitation boots in a locker room at the plant. On their way to clocking in, employees put on ear plugs, hairnets and beard nets, which are kept in bins near the locker room. (The parties do not identify where employees put on hard hats, bump caps, safety glasses and freezer coats, but they agree that employees must put on these items before clocking in.) All of these items are owned by defendant and stored at the plant. After walking to the time clock and swiping their time cards, employees put on plastic gloves, aprons and slickers. (Neither side proposes any facts regarding what happens at the end of the shift, but it is reasonable to infer that it is the same as the beginning of the shift, that is, employees are paid for taking off gloves, aprons and slickers, but not 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" }, { "docid": "20670077", "title": "", "text": "of sanitary outergar-ments worn by meat processing employees, although required, is not integral and indispensable to the employer, and is, therefore, a preliminary and postliminary activity within the meaning of the Portal Act). In the instant case, the wearing of clean outergarments benefits the employees because it protects their street clothes from becoming soiled. To be certain, the wearing of these outergarments also benefits Pilgrim’s Pride. However, in light of preexisting case law, the clothes changing activity required of the line employees in this case is not “integral and indispensable” to their principal jobs. Thus, the Court concludes that the donning and doffing of the sanitary and safety equipment qualifies as a preliminary and postliminary activity within the meaning of the Portal-to-Portal Act . 3. De Minimis Doctrine Pilgrim’s Pride argues that the amount of time spent donning, doffing, and sanitizing the clothing and equipment is de minimis as a matter of law. Courts should weigh four factors to determine whether an activity is de minimis as a matter of law. The four factors include: (1) the amount of daily time spent on the additional work; (2) the administrative difficulty in recording the time; (3) the size of the aggregate claim; and (4) the regularity of the work. See Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir.1984). See also 29 C.F.R. § 785.47 (de minimis rule should be applied “only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable working period of time he is regularly required to spend on duties assigned to him”). The Court has already determined that the activities at issue are not work and are preliminary and postliminary under the FLSA. Accordingly, an extensive analysis of the de minimis doctrine is unnecessary. However, assuming arguendo that the activities at issue in this case were" }, { "docid": "20670076", "title": "", "text": "clothes’changing and cleaning involved in the instant case to be distinguishable from the clothes changing and showering involved in the Steiner decision. Plaintiffs contend that the time spent changing and sanitizing clothing should be compensable because Pilgrim’s Pride and the USDA requires them to wear and sanitize the clothing at issue. However, the argument that donning and doffing sanitary clothing is a compensable, principal activity merely because both the employer and the USDA require the sanitary clothing to be worn has been rejected by other courts. In McComb v. C.A. Swanson & Sons, production employees in a poultry plant were legally required to wear aprons, frocks, and other outer clothing and to maintain the cleanliness of the garments. However, despite the fact that the poultry company could not lawfully engage in its business without employee compliance with these clothing requirements, the McComb court determined that putting on this clothing was a preliminary activity, and thus not compensable. See also Reich v. IBP, Inc., 38 F.3d 1123, 1125 (10th Cir.1994) (determining that the donning and doffing of sanitary outergar-ments worn by meat processing employees, although required, is not integral and indispensable to the employer, and is, therefore, a preliminary and postliminary activity within the meaning of the Portal Act). In the instant case, the wearing of clean outergarments benefits the employees because it protects their street clothes from becoming soiled. To be certain, the wearing of these outergarments also benefits Pilgrim’s Pride. However, in light of preexisting case law, the clothes changing activity required of the line employees in this case is not “integral and indispensable” to their principal jobs. Thus, the Court concludes that the donning and doffing of the sanitary and safety equipment qualifies as a preliminary and postliminary activity within the meaning of the Portal-to-Portal Act . 3. De Minimis Doctrine Pilgrim’s Pride argues that the amount of time spent donning, doffing, and sanitizing the clothing and equipment is de minimis as a matter of law. Courts should weigh four factors to determine whether an activity is de minimis as a matter of law. The four factors include:" }, { "docid": "16803650", "title": "", "text": "is, therefore, unpersuasive, particularly as these do not generally meet the description of preliminary or postliminary activities. See 29 U.S.C. § 254(a) (describing preliminary and postliminary activities as acts other than “the principal activity or activities which such employee is employed to perform.”). . The Second Circuit also stated that \"[t]he donning and doffing of generic protective gear is not rendered integral by being required by the employer or by government regulation.” Id. (citations omitted). We do not adopt this premise. Rather, as recognized in Alvarez, see 339 F.3d at 903, that is one factor to be considered in the compensability determination. GOULD, Circuit Judge, concurring in the judgment in part and dissenting in part: I would not announce a bright-line location rule that controls the compensability of preliminary and postliminary activities under the FLSA. The location where an activity is performed is just one of many useful tools in the fact-sensitive compensability analysis. Location is not in and of itself the controlling test. Because I disagree with the majority’s approach and its holding with respect to job-related protective gear, I concur in the judgment only with respect to the majority’s determination that the donning and doffing of police uniforms is non-compensable. I would hold that the donning and doffing of protective gear is compensable, subject to a de minimis analysis on remand. Thus I respectfully dissent in part. I The majority creates a bright-line rule that donning and doffing uniforms and protective gear is integral and indispensable to police work, and thus compensable under the FLSA, only if a “requirement of law, rule, the employer, or the nature of the work mandates donning and doffing at the employer’s premises.” Op. at 1233. This new rule is contrary to the Supreme Court’s context-specific approach to determining compensability. Even absent that conflict, I doubt that the new rule will do much to clarify the law governing when the donning and doffing of police uniforms and gear is compensable. A First, “[t]he Supreme Court’s approach to this principal, integral and indispensable duty question is context-specific.” Alvarez v. IBP, Inc., 339 F.3d 894," }, { "docid": "5031241", "title": "", "text": "the plaintiffs’ donning and doffing of uniforms would be non-compensable on two additional, independent grounds: that the time spent on those activities qualified as de minimis, see Reich, 45 F.3d at 652-53 (describing and applying the de minimis doctrine); and that, in any event, the time was rendered non-compensable by the plaintiffs’ collective bargaining agreement, see 29 U.S.C. § 203(o) (providing that when tabulating “the [compensable] hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee”). Because the success of both of these arguments is fact-dependent, we leave it to the district court, on remand, to address them in the first instance. In doing so, the court may expand, as in its discretion may be necessary, the factual analysis contained in the January 15, 2015 decision. II. Remaining Arguments for Partial Summary Judgment The defendants also sought partial summary judgment on three additional issues that the district court has not yet addressed: that any claim premised on work performed before June 22, 2009 is barred by the FLSA’s limitations period; that the plaintiffs were not entitled to compensation for purported overtime hours that they did not adequately report; and that the Parks Department is not a proper defendant. On remand, the court should also address those issues in the first instance. Again, the court may expand the factual analysis contained in the January 15, 2015 decision as it deems necessary. CONCLUSION For the foregoing reasons, we VACATE the district court’s January 15, 2015 deci sion granting partial summary judgment for the defendants and REMAND for further proceedings consistent with this opinion. . For a commentary on the statute's use of the word “postliminaiy'', see Eugene Volokh, Postliminary:, Volokh Conspiracy (Aug. 21, 2009, 2:12 PM), http://volokh.com/2009/08/21/ postliminary/, archived at https://perma.cc/SE 2J-YKVN. . “We review de novo a district court's grant of summary" }, { "docid": "820843", "title": "", "text": "of this case, even though the uniform and equipment function as a whole, their donning and doffing are nevertheless subject to the de minimis rule. Specifically, “[mjost courts have found daily periods of approximately 10 minutes de minimis even though otherwise compensable.” Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir.1984). Defendant claims that in each donning and doffing case binding upon this court in which the activity was found to be compen-sable, plaintiffs were required to don and doff at the employer’s premises. See Steiner, 350 U.S. 247, 76 S.Ct. 330; Alva rez, 339 F.3d 894; Ballaris, 370 F.3d 901. If the officers here were explicitly required to don and doff at the station, then the donning and doffing would clearly be com-pensable. This is because Ballaris rested squarely on the fact that the employer there required changing into uniform be done on its premises. The court stated that “[b]ecause [the employer] determined that all employees in the second plant must wear uniforms daily and must put them on and take them off on the plant premises, and it adopted that rule [for business reasons], the company, by its conduct, made such activities integral and indispensable to the job.” Ballaris, 370 F.3d at 912 (citation omitted). Although this does argue against compensation for the instant plaintiff, there is no explicit requirement in the Ninth Circuit that the preliminary or postliminary activity take place on the employer’s premises. This court, therefore, refuses to inject a location limitation into the analysis for finding com-pensability under the FLSA. In any event, most officers don and doff at the station in practice — this is a strong indicia that the donning and doffing of the uniform at the police station is a de facto requirement. This finding is further buttressed by the lockers the SLPD provides to each officer. Defendant also claims that basic activities, such as changing clothes, are not normally compensable. 29 C.F.R. § 790.7(g) (changing clothes is normally “preliminary” or “postliminary”); see also 29 U.S.C. § 203(o) (the FLSA “excluded any time spent in changing clothes or washing at" }, { "docid": "16803659", "title": "", "text": "and doffing of the uniform at the police station is a de facto requirement”); Martin v. City of Richmond, 504 F.Supp.2d 766, 776 (N.D.Cal.2007) (finding genuine issue of material fact as to whether the nature of police work permits off-site donning and doffing). Indeed, the allegation of a de facto policy requiring on-site donning and doffing was raised in this very case. Bamonte v. City of Mesa, 2008 WL 1746168, at *6 (D.Ariz.2008). The majority opinion endorses this argument by explaining that employees “must have the ability to don and doff their gear at home, not just the option.” Op. at 1231 n.16. Rather than clarifying whether donning and doffing of police uniforms and gear is compensable, the majority’s approach will just change the terms of the debate. Employees will now focus their energies on showing either that (1) their employer maintains a de facto policy requiring on-site donning and doffing, or (2) that the nature of their work requires it. The bright-line location requirement will do little to resolve the issue of when police officers must be compensated for donning and doffing their uniforms and gear. While straying from the Supreme Court’s context-specific principles, the majority’s approach will in effect provide little actual guidance. II Applying a context-specific approach to the Mesa officers’ claims, I agree with the majority that the time officers spend donning and doffing their uniforms is not compensable. I would hold, however, that the time spent donning and doffing the protective gear is compensable, subject to a de minimis analysis. A Where uniforms, are concerned, we start with the baseline understanding that changing clothes under “normal conditions” is a non-compensable preliminary or postliminary activity under the Portal-to-Portal Act. Steiner, 350 U.S. at 249, 76 S.Ct. 330. For clothes changing to become compensable in this case, it must be integral and indispensable to policing, meaning that it is necessary to the principal policing activities and done for the benefit of the employer. See Alvarez, 339 F.3d at 902-03. In the cases where donning and doffing a “uniform” has been found compensable Steiner and Ballaris — the" }, { "docid": "22181609", "title": "", "text": "coverage under the FLSA. Whatever the intended scope of the Magistrate’s grant of partial summary judg ment, the questions submitted to the jury after trial asked jurors to consider only whether Barber was required to compensate petitioners for the time they spent actually donning and doffing various gear. Before the case was submitted to the jury, the parties stipulated that four categories of workers — rotating, setup, meatroom, and shipping and receiving associates — were required to don protective gear at the beginning of their shifts and w;ere required to doff this gear at the end of their shifts. The jury then made factual findings with regard to the amount of time reasonably required for each category of employees to don and doff such items; the jury concluded that such time was de minimis and therefore not compensable. The jury further concluded that two other categories of employees — maintenance and sanitation associates — were not required to don protective gear before starting their shifts. Accordingly, the jury ruled for Barber on all counts. On appeal, petitioners argued, among other things, that the District Court had improperly excluded as noneompensa-ble the time employees spend walking to the production floor after donning required safety gear and the time they spend walking from the production floor to the area where they doff such gear. The Court of Appeals rejected petitioners’ argument, concluding that such walking time was a species of preliminary and postliminary activity excluded from FLSA coverage by §§ 4(a)(1) and (2) of the Portal-to-Portal Act. 360 F. 3d, at 281. As we have explained in our discussion of IBP’s submission, see Part II, supra, that categorical conclusion was incorrect. Petitioners also argued in the Court of Appeals that the waiting time associated with the donning and doffing of clothes was compensable. The Court of Appeals disagreed, holding that the waiting time qualified as a “preliminary or postliminary activity” and thus was excluded from FLSA coverage by the Portal-to-Portal Act. 360 F. 3d, at 282. Our analysis in Part II, supra, demonstrates that the Court of Appeals was incorrect with regard" }, { "docid": "20400896", "title": "", "text": "work shift are “ordinarily” considered preliminary or postliminary activities and are therefore “excluded from compensable work time” by default. Steiner v. Mitchell, 350 U.S. 247, 249, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Changing clothes and washing are not so excluded, however, if they are “an integral and indispensible part” of an employee’s principal activities. Id. at 256, 76 S.Ct. 330. The second is Section 203(o) of the FLSA. This section provides: Hours Worked. — In determining for the purposes of [the minimum wage and overtime provisions] of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee. 29 U.S.C. § 203(o) (emphasis added). While these two provisions both bear on whether changing clothes and washing count as part of the compensable workday, they operate in different yet interrelated ways. As the Supreme Court has noted, Section 203(o)’s “clear implication is that clothes changing and washing, which are otherwise a part of the principal activity [under the Portal-to-Portal Act], may be expressly excluded from coverage by agreement.” Steiner, 350 U.S. at 255, 76 S.Ct. 330. That is, even if changing clothes and washing are “integral and indispensible” and therefore not excluded from work time by default under the Portal-to-Portal Act, an employer and union may nonetheless “opt out” by excluding such time under their collective-bargaining agreement. See Livadas v. Bradshaw, 512 U.S. 107, 131, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) (describing Section 203(o) as an “opt out” provision). In this case, either provision could potentially exclude the time that the employees spend donning and doffing. It is an open question in this circuit whether donning and doffing protective gear is a preliminary or postliminary activity or “integral and indispensible” to the principal activity of poultry processing. If it is the former, then time spent on the activity" }, { "docid": "20670078", "title": "", "text": "(1) the amount of daily time spent on the additional work; (2) the administrative difficulty in recording the time; (3) the size of the aggregate claim; and (4) the regularity of the work. See Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir.1984). See also 29 C.F.R. § 785.47 (de minimis rule should be applied “only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable working period of time he is regularly required to spend on duties assigned to him”). The Court has already determined that the activities at issue are not work and are preliminary and postliminary under the FLSA. Accordingly, an extensive analysis of the de minimis doctrine is unnecessary. However, assuming arguendo that the activities at issue in this case were compen-sable, the de minimis doctrine would still preclude the Plaintiffs from recovering their otherwise compensable time because of the small duration of time spent on the activities. The Court has noted that most employees don and clean their sanitary clothing and personal equipment in approximately one minute. Moreover, employees spend even less time doffing their sanitary clothing. Assuming that some employees don and doff their clothing slowly, it is still evident that the slow dressers would not spend more than 1-2 minutes each time they don their equipment and would spend even less time each time they doffed their equipment. Accordingly, the amount of uncompensated time spent on these activities for slow dressers would still be less than 10 minutes per day. The majority of courts have found daily periods of approximately 10 minutes de minimis as a matter of law. See Lindow, 738 F.2d at 1062. Therefore, the Court finds that the amount of time spent donning the various items, doffing the various items, and sanitizing the clothing is de minimis as a matter" }, { "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": "16225587", "title": "", "text": "denied summary judgment as to the claim involving the donning and doffing of required clothing and equipment. The court found that the donning and doffing of clothing and equipment required by Barber Foods or by government regulation is an integral part of Plaintiffs’ employment. This finding removed the donning and doffing of required gear from the Portal-to-Portal Act and its exclusion of compensability for preliminary or postliminary activity. 29 C.F.R. § 790.8. A trial was held on the issue of whether the time spent donning and doffing required clothing was de mini-mus and thus did not constitute work under the FLSA. The jury found that the combined donning and doffing times are 1 minute for rotating associates, 2 minutes 16 seconds for set-up 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, 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" }, { "docid": "14495880", "title": "", "text": "in district court claiming that Barber Foods violated the FLSA by forcing its hourly employees to work “off the clock” by not paying Employees for the time it takes to obtain, don, and doff their gear. Although the district court granted summary judgment for the defendants as to most counts, the court denied summary judgment as to the claim involving the donning and doffing of required clothing and equipment. The court found that the donning and doffing of clothing and equipment required by Barber Foods or by government regulation is an integral part of Plaintiffs’ employment. This finding removed the donning and doffing of required gear from the Portal-to-Portal Act and its exclusion of compensability for preliminary or postliminary activity. 29 C.F.R. § 790.8. A trial was held on the issue of whether the time spent donning and doffing required clothing was de min-imis and thus did not constitute work under the FLSA. The jury found that the combined donning and doffing times are 1 minute for rotating associates, 2 minutes 16 seconds for set-up 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)." }, { "docid": "15895128", "title": "", "text": "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 [a] principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.” 29 U.S.C. § 254(a). Defendant believes that the donning and doffing of protective equipment constitutes noncompensable “preliminary” and “postliminary” activities. Defendant’s view might be plausible looking at the language of the statute in isolation, but it is completely untenable in light of the Supreme Court’s interpretations of the statute. The question in Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956), was whether chemical plant employees were engaging in “preliminary” and “postliminary” activities under § 254(a) when they showered and changed their clothes immediately before and after working with toxic chemicals. After reviewing the statute’s legislative history, the Court concluded that Congress “did not intend to deprive employees of the benefits of the Fair Labor Standards Act where they are an integral part of and indispensable to their principal activities.” Id. at" }, { "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": "820844", "title": "", "text": "on the plant premises, and it adopted that rule [for business reasons], the company, by its conduct, made such activities integral and indispensable to the job.” Ballaris, 370 F.3d at 912 (citation omitted). Although this does argue against compensation for the instant plaintiff, there is no explicit requirement in the Ninth Circuit that the preliminary or postliminary activity take place on the employer’s premises. This court, therefore, refuses to inject a location limitation into the analysis for finding com-pensability under the FLSA. In any event, most officers don and doff at the station in practice — this is a strong indicia that the donning and doffing of the uniform at the police station is a de facto requirement. This finding is further buttressed by the lockers the SLPD provides to each officer. Defendant also claims that basic activities, such as changing clothes, are not normally compensable. 29 C.F.R. § 790.7(g) (changing clothes is normally “preliminary” or “postliminary”); see also 29 U.S.C. § 203(o) (the FLSA “excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded ... by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.”). It claims this is especially true if donning and doffing of clothes are not required to be done on the employer’s premises. See 29 C.F.R. § 790.8(c) n. 65 (changing clothes may be compensable if “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 Ninth Circuit has defined “clothes” when interpreting the scope of the “changing clothes or washing” exclusion to the FLSA under collective bargaining agreements. See 29 U.S.C. § 203(o); Alvarez, 339 F.3d at 904-06. It held that “the district court correctly interpreted the ‘changing clothes’ exception in [the changing clothes or washing exclusion] as not including the time spent putting on personal protective equipment.” Id. at 905. The court then found that: “Personal Protective Equipment is specialized clothing or equipment worn by an employee" }, { "docid": "20400894", "title": "", "text": "“the employees”). The employees claimed, among other things, that the company had violated the FLSA by not compensating them for time spent donning and doffing their protective gear. After discovery, the company moved for summary judgment. Its primary argument was that its pay practices were permissible under 29 U.S.C. § 203(o) of the FLSA, which allows employers and unions to exclude “any time spent in changing clothes ... at the beginning or end of each workday” from compensable work time. In response, the employees sought, by cross motion for partial summary judg ment, a holding that Section 203(o) did not bar their suit. The main issue of contention was whether donning and doffing protective gear constituted “changing clothes” within the meaning of the section. Adopting the Eleventh Circuit’s analysis in Anderson v. Cagle’s, Inc., 488 F.3d 945 (11th Cir.2007), cert. denied, — U.S.-, 128 S.Ct. 2902, 171 L.Ed.2d 841 (2008), the district court held that the donning and doffing of the protective gear was “changing clothes.” Accordingly, it entered summary judgment for the company. The employees now appeal. II. We begin with a brief overview of the relevant statutory provisions. The FLSA guarantees covered employees a mini mum hourly wage for their work and entitles them to one and one-half times their regular wage for overtime. 29 U.S.C. §§ 206, 207. A recurrent question under the Act has been when the compensable workday begins and ends. The question often arises where, as here, employees perform some tasks before productive work begins. The FLSA does not define “work” or “workweek.” But two statutory provisions do bear directly on the question of when the compensable workday begins. The first is Section 254 of the Portal-to-Portal Act, 29 U.S.C. §§ 251-62, which amends the FLSA. It provides, among other things, that employers are not required to pay their employees for “activities which are preliminary to or postliminary to” the principal activities for which they are employed, unless the employer agrees to do so. § 254(a)(2), (b). Under this provision, activities like changing clothes and washing which are performed before or after the regular" }, { "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": "9695693", "title": "", "text": "482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987), the Supreme Court, viewing that case as entirely consistent with Green-holtz, expressly recognized a protectible liberty interest in parole where the governing statute encapsulates parole in mandatory release language. 482 U.S. at 376, 107 S.Ct. at 2419-20. The statute governing Kindred's case is the Federal Parole Statute, 18 U.S.C. § 4206(a); and its mandatory release language mirrors the language in the Montana statute construed by the Supreme Court in Allen. Section 4206(a) provides that a prisoner meeting the Commission's guidelines \"shall be released\". Consequently, Allen controls this case and due process must govern Kindred's parole decision. The government suggests that even if Allen applies the protection that it affords Kindred is in the nature of minimal procedural protections and that, therefore, Kindred is entitled to no more than a hearing and a statement of reasons why he does not qualify for release. The government alleges that the district court engaged in substantive due process analysis in scrutinizing the decision of the Commission and that, therefore, it substituted its discretion for that of the Commission, where it was properly and broadly vested. The Commission's discretion is not unfettered. The Supreme Court in Allen was adamant that, although the Parole Board has discretion (in the sense of power to use its judgment in applying the standards set it), it is \"not incompatible with the existence of a liberty interest in parole release when release is required after the Board determines (in its broad discretion) that the necessary prerequisites exist.\" 482 U.S. at 376, 107 S.Ct. at 2419 (emphasis in original). Further, the Allen Court reiterated its Greenholtz holding that though release decisions are \"necessarily subjective and predictive\" and though the Board's discretion regarding them is \"very broad\", the presence of mandatory release language creates a constitutionally protectible liberty interest in parole. 482 U.S. at 381, 107 S.Ct. at 2422. This liberty interest moors the Commission to certain due process standards. The parties take opposing views of the content of those standards. The government, citing Greenholtz, argues for only a minimal due process" } ]

[ { "docid": "23372451", "title": "", "text": "1394 (1st Cir.1991); Fed.R.Civ.P. 12(b)(6). We review a grant of summary judgment de novo, viewing the facts in the light most favorable to the nonmovant, plaintiff. Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.1995). III. Due Process Clause of the Fourteenth Amendment A. The District Court Decision The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property without due process of law.” U.S. Const, amend. XIV. The focal issue here is whether plaintiff was deprived of a protected liberty interest. Plaintiff has not asserted that he possessed a liberty interest created by the federal Constitution itself. Rather, he has contended that Massachusetts state regulations and the Community Release Agreement established a state-created liberty interest which defendants could not take away without providing due process. The regulations and Agreement, he argued, cabined officials’ discretion and led him legitimately to expect to remain in the work release program so long as he did not violate some express condition. Dominique relied on cases holding that a liberty interest may be created by “explicitly mandatory language” within state regulations. See Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 1910, 104 L.Ed.2d 506 (1989); Hewitt v. Helms, 459 U.S. 460, 471-472, 103 S.Ct. 864, 871-72, 74 L.Ed.2d 675 (1983); see also Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983) (“particularized standards or criteria [to] guide the State’s decisionmakers”) (citation omitted). Dominique pointed to cases of this circuit holding that a signed agreement outlining criteria for participation in and removal from a prison release program may evidence a state-created liberty interest. Lanier v. Fair, 876 F.2d 243 (1st Cir.1989); Brennan v. Cunningham, 813 F.2d 1 (1st Cir.1987). The district court analyzed the state regulations and Agreement under Thompson, Hewitt, Olim criteria. It concluded that the language relating to Dominique’s interest in participating and remaining in the work release program was too provisional to create a constitutionally-protected liberty interest. Neither the regulations nor the Agreement required officials to grant work release status initially or indefinitely. Despite" }, { "docid": "8865435", "title": "", "text": "of law. U.S. Const. Amend. XIV, § 1. Federal courts examine questions of procedural due process in two steps. First, they must ascertain if there is a liberty or property interest that was interfered with by the state. Second, if there is such an interest, the courts must determine if the procedures attendant upon a deprivation of that interest were constitutionally sufficient. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (receded from and rejected on separate grounds). Addressing the first question (the existence of a liberty interest), the Court finds that a liberty interest protected by the Due Process Clause “must rise to more than an abstract need or desire and must be based on more than a unilateral hope. [Indeed], an individual claiming a protected interest must have a legitimate claim of entitlement to it.” Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (internal citations and quotations omitted). The United States Supreme Court has expressly denied any entitlement to a protected liberty interest in parole. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Specifically, the Supreme Court found that a convicted persons has no constitutional or inherent right to be released prior to the expiration of a valid sentence. A valid conviction, with all of its procedural safeguards, extinguishes that liberty interest. Indeed, once sentenced, the criminal defendant has been constitutionally deprived of his liberty and all interests therein. Id. However, as an exception to this general rule, a state can create an enforceable liberty interest in parole through the “unique structure and language” of its parole statutes. Id. at 12, 99 S.Ct. 2100. The Supreme Court has found that “mandatory language” in a parole statute creates an expectancy of release and gives rise to a protected liberty interest. Board of Pardons v. Allen, 482 U.S. 369, 371, 377-78, 107 S.Ct. 2415, 96" }, { "docid": "16769420", "title": "", "text": "that “his reassignment was not done arbitrarily and capriciously”; and (3) that in any event Wallace “has received all of the process due him”. Wallace contests all three conclusions. The first is correct; as it is also dispositive, we shall stop there. II Illinois has a rule of the form: “The warden may do A for any reason, but if that reason is M the warden must prove M before acting.” One could restate this as: “The warden may do A for any reason except M.” A in our case is changing the prisoner’s job assignment. M is misconduct. Wallace may have taken hooch to his job at the tailor shop, which violates a rule of the prison. He may have been a goldbrick, knocking off work early. He may have gotten his supervisor’s goat, which violates no rule but may make it wise to move him. Or he may have done all three. Whether the state employed procedures adequate to find the “true” reason matters only if a rule in the form we have described creates a liberty or property interest. Only statutes or rules attaching consequences to particular circumstances give prisoners liberty or property interests. Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460-63, 109 S.Ct. 1904, 1908-10, 104 L.Ed.2d 506 (1989). Weasel words such as “in so far as possible” in 111003-12-1 show that Illinois has not assured its inmates any job, let alone the job the inmate prefers. The warden therefore could switch Wallace from tailor to clerk on learning that he burned the trousers, or did not return after lunch, or sassed his supervisor — or for no particular reason at all. Paragraph 1003-12-1 does not create a liberty or property interest. Joihner v. McEvers, 898 F.2d 569, 571 (7th Cir.1990). Wallace hangs his hat on 111003-8-7(b)(2) and (e)(6), the restriction on disciplinary transfers. Does this language create a “legitimate claim of entitlement”? If not, there is no constitutional liberty or property. Thompson, 490 U.S. at 460, 109 S.Ct. at 1908; Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d" }, { "docid": "7534731", "title": "", "text": "facts of Welch’s false imprisonment claim, we affirm. I. The material facts of this case are not in dispute. Welch is a native and citizen of Panama. At the age of ten, he entered the United States with his family and has been a permanent legal resident of this country since that time. While he was never granted citizenship, both of his parents and two of his three siblings are American citizens. Welch' served in the United States Navy and Naval Reserve from 1986 through 1994, when he was honorably discharged. He is now a resident of the State of Maryland, where he lives with his wife, two sons, and step-daughter, all of whom are American citizens. In 1993, Welch was arrested after being involved in an altercation on a basketball court. He was charged with a series of state felonies stemming from the incident, including assault and weapons charges. He pled guilty to the charges in 1994 and was sentenced to five years in prison: He ultimately served three years in a Maryland state correctional facility and was released in October, 1996. After Welch’s initial plea, the United States Department of Justice (“DOJ”) instituted deportation proceedings against him under two subsections of the Immigration and Naturalization Act. See 8 U.S.C. § 125i(a)(2)(A)(iii)(authorizing deportation for conviction of an “aggravated felony”); 8 U.S.C. § 1251(a)(2)(C)(authorizing deportation for unlawful possession of a firearm). In August, 1997, following his release, an immigration judge ordered Welch deported to Panama pursuant to § 1227(a)(2) (A) (iii). Welch appealed the order to the Board of Immigration Appeals, and the appeal was denied on July 8, 1998. In October, 1998, the DOJ took Welch into custody and placed him in detention pending his déportation. The removal process was delayed however, as the Immigration and Naturalization Service (“INS”) did not receive the necessary paperwork from the Panama Consulate in order to complete deportation proceedings. While Welch remained in detention, on April 22, 1999, the state charges for which he had pled guilty were vacated in state court on collateral review. On that same day, Maryland entered into an" }, { "docid": "12107688", "title": "", "text": "denial of release plans of offenders, like Carver, whom the DOC determined “appealed] to meet the definition of a sexually violent predator and [who had] been referred for Civil Commitment. ...” DOC Policy Directive 350.200 (May 4, 2001). As a result of the denial of his proposed release plan, Carver served his full term of confinement. In September 2004, Carver filed a civil rights suit under 42 U.S.C. § 1983, asserting that DOC officials denied him early release into community custody without affording him due process of law under the Fourteenth Amendment. The district court, adopting the report and recommendation of the magistrate judge, granted the DOC officials’ motion for summary judgment on two principal grounds: first, that Washington law does not create a liberty interest in early release into community custody and, therefore, Carver did not have a due process right protected by the Fourteenth Amendment; and second, that even if such a right existed, Defendant Lehman was entitled to qualified immunity. Carver timely appealed. Jurisdiction and Standard of Review We have jurisdiction to review the district court’s determination pursuant to 28 U.S.C. § 1291, and we review de novo its grant of summary judgment and finding of qualified immunity. See Mabe v. San Bernardino County, Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir.2001); Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir.2007). Discussion The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law-” U.S. Const, amend. XIV, § 1. Our analysis of due process claims proceeds in two steps. “[T]he first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citation omitted). “A liberty interest may arise from either of two sources: the due process clause itself or state law.” Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th" }, { "docid": "4940336", "title": "", "text": "on August 27, 1996, the court found three different approaches used by the courts in granting relief in similar cases. The first approach is to deny relief entirely, usually under a theozy that the discretionary language in the statute grants petitioner no liberty interest in early release or that the BOP’s Program Statement is entitled to deference. Courts in the Western District of Texas, the Western District of Pennsylvania and the Central District of Illinois have so held. The second approach is to find the petitioner eligible for release and order that his sentence be reduced by one year. Courts in the District of Oregon, the Central District of California, and the District of Arizona have so held. The third approach is to declare the petitioner eligible, but not order that he be released. Only the District of South Dakota has so held. . Petitioner is right not to request release, since \"there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979). 18 U.S.C. § 3621 only allows that the BOP may shorten an inmate's sentence by up to a year. See O’Bar v. Pinion, 953 F.2d 74, 84 (4th Cir.1991) (holding that a statute which \"established a work-release plan under which an eligible prisoner may be released from actual custody” if certain requirements were met, created a “hope about a future discretionary decision by prison administrators [which was] too speculative to give an inmate a liberty interest”); Cf. Board of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 2420, 96 L.Ed.2d 303 (1987) (finding that the word \"shall” created \" ‘a presumption that parole release will be granted’ when the designated findings are made”) (quoting Greenholtz, 442 U.S. at 12, 99 S.Ct. at 2106). Such conditional language does not create a liberty interest. Nor does failure to comply with the notice and comment provisions of the APA necessarily cause plaintiff’s custody to violate the Constitution or laws of" }, { "docid": "22757208", "title": "", "text": "under the deferential standard of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The petition cannot be granted unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). When a state court does not explain its reasoning, as is the case here, we must conduct an independent review of the record to determine whether the state court’s decision was objectively unreasonable. Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir.2004). Contrary to the dissent’s assertion, we did conduct an independent review of the record. III. We analyze a due process claim in two steps. “[T]he first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citation omitted). Did Sass have a constitutionally protected liberty interest in parole? The Supreme Court has held that “[tjhere is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence,” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). However, if a state statute “uses mandatory language (‘shall’) to ‘create a presumption that parole release will be granted’ when the designated findings are made,” the statute creates a liberty interest in parole. Bd. of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (quoting Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100). When previously confronted with the question whether section 3041 creates a liberty interest in parole, this court held that “[ujnder the ‘clearly established’ framework of Greenholtz and Allen, ... California’s parole scheme gives rise to a cognizable liberty interest in release on parole.” McQuillion" }, { "docid": "22213385", "title": "", "text": "procedures at all. Any temptation to say that freedom from confinement (the maximum 6 year and 8 month difference between Class I and Class II) must be a form of “liberty” was squelched in opinions such as Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), and Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998). These hold that a judgnent of conviction extinguishes natural liberty for its full length— in Montgomery’s case, 40 years. Opportunities for early release, such as parole or pardon, constitute either property interests or a form of synthetic liberty, and then only if the state has made a promise. Unilateral expectations and hopes for early release do not constitute property, which depends on a legitimate claim of entitlement. See Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987); Wallace v. Robinson, 940 F.2d 243 (7th Cir.1991) (en banc). Sandin altered this positivest approach for sanctions such as segregation that do not affect the length of incarceration, but it did not modify the rules for determining when extension of custody affects a liberty or property interest, see 515 U.S. at 484, 115 S.Ct. 2293, so we apply to good-time credits the approach articulated by Greenholtz and its successors for parole release. In the federal system, and increasingly among the states, good-time credits are a prisoner’s principal if not exclusive avenue of early release, so equating the constitutional treatment of the two systems is apt. Good-time credits are statutory liberty interests once they have been awarded, just as parole is a form of statutory liberty once the prisoner has been released. That is the basis of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), which holds that states must use appropriate procedures before revoking credits they have bestowed. See also Morrissey" }, { "docid": "18847361", "title": "", "text": "discretionary function.” Id. If the placement of inmates was a discretionary function under the rules in effect prior to October of 1988, it follows a fortio-ri that prisoner placement was a discretionary function under the less structured rules that were in effect at the time of the plaintiff's transfer to the prison at Jackson. The district court concluded in the case at bar that rules in effect at the time of the plaintiffs transfer stopped short “of requiring that a particular result be reached upon a finding that the substantive predicates are met.” Slip Opinion at 11, citing Kentucky Department of Corrections v. Thompson, 490 U.S. at 464, 109 S.Ct. at 1910. Because the rules “lack the requisite relevant mandatory language,” the district court held, “no liberty interest protected by the Due Process Clause of the Fourteenth Amendment has been created.” Id. We read the Michigan rules the same way. See Wilson v. Brown, 1991 WL 23536 at *1, 1991 U.S. App. LEXIS 3074 at *3, No. 90-1957, decided without published opinion, 927 F.2d 606 (6th Cir.1991) (Michigan “imposes no substantive limits on the discretion of prison officials to reclassify prisoners”). Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987), on which the plaintiff relies heavily, does not require a contrary reading of the Michigan rules. Allen held that a liberty interest in release on parole was created by a Montana statute which, absent the existence of specified conditions that would preclude parole, mandated the granting of parole upon a finding by the State Board of Pardons of a “reasonable probability that the prisoner can be released without detriment to the prisoner or the community.” Montana Code Ann. § 46-23-201(1). Under Michigan’s system, by contrast, prisoners were to be assigned to the least restrictive level of custody consistent with the requirements of a subrule that had been amended to give a non-exclusive listing of factors consideration of which was permissive, not mandatory — and the prison staff was explicitly authorized to place a prisoner in a security classification other than that indicated by the" }, { "docid": "5812353", "title": "", "text": "circumstances. The court therefore concluded that the Constitution required the Board to conduct parole hearings of prisoners with low total point scores sufficiently in advance of their parole eligibility dates that they could be released as soon as they became eligible and to provide all prisoners denied parole with more information explaining the reasons for the denial. B By the time of the district court’s decision, the Supreme Court had settled on an approach to the Due Process Clause that made the existence, or lack thereof, of a liberty interest in parole turn on the language of the regulations governing parole. While there “is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence” (Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2104), a state’s parole regulations might require release after a parole board “determines (in its broad discretion) that the necessary prerequisites exist” (Board of Pardons v. Allen, 482 U.S. 369, 376, 107 S.Ct. 2415, 2419, 96 L.Ed.2d 303 (1987)), in which event the state has created an expectation of release rising to the level of a liberty interest within the meaning of the Due Process Clause. Greenholtz, Allen, and Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), came to stand for the proposition that a state’s “use of ‘explicitly mandatory language,’ in connection with the establishment of ‘specified substantive predicates’ to limit discretion, forces a conclusion that the state has created a liberty interest.” Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 1910, 104 L.Ed.2d 506 (1989). Where the Supreme Court stands on this subject is no longer certain. Sandin v. Conner, — U.S. — , 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), a case dealing with prison disciplinary proceedings, roundly criticized the methodology just described. The Sandin majority thought the Court had gone astray, particularly in Hewitt v. Helms, when it made liberty interests depend on the “somewhat mechanical dichotomy” between state regulations that were mandatory and those that were discretionary. Id. at — , 115 S.Ct." }, { "docid": "14574011", "title": "", "text": "Defendants contend plaintiff lacked a protected liberty interest in his credits for time served. I disagree. A state creates a protected liberty interest by placing substantive limitations on official discretion. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 462, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989). A state may do this in a number of ways. The most common manner is by establishing substantive predicates to govern official decision making, and mandating the outcome to be reached upon a finding that the relevant criteria have been met. Id. The statute or regulation in question must contain “explicitly mandatory language.” Id. at 463, 109 S.Ct. at 1910. Under Oregon law, the “time that the person is confined by any authority after the arrest for the crime for which sentence is imposed” is counted as time the inmate has served on his sentence. ORS 137.370(2). There is no room for discretion. See also OAR 255-25-010(1) (1989) (time served credit shall be granted towards the prison term for certified time served in the county jail after arrest, including time served in the county jail as a condition of probation); OAR 291-100-013(2)(d) (Credit for time served in a county jail or other confinement facility mil be applied on a day-for-day basis upon receipt of proper documentation). The Magistrate Judge reasoned that since plaintiffs original prison sentence would not have expired until January 1993, subtracting 83 days from his sentence would have required his release sometime in September or October 1992, long after his actual release date, hence plaintiff had suffered no harm. The Magistrate Judge erred by assuming credits for time served are deducted from the original prison sentence pronounced by the sentencing judge. The phrase “prison term” as used in OAR Chapter 255 does not refer to the original sentence, but rather the term established by the Board of Parole to be served before the parole release date, in this case twelve months. OAR 255-05-005(33) (1989). The Magistrate Judge further erred by citing ORS 137.320(4) for the same proposition. The latter applies only to a sentence to be served entirely in" }, { "docid": "19897702", "title": "", "text": "v. Cambra, 306 F.3d 954, 960 (9th Cir.2002) (internal quotation marks and citation omitted), amended, 311 F.3d 928 (9th Cir.2002)); see Bruce v. Terhune, 376 F.3d 950, 956 (9th Cir.2004) (“Although only the Supreme Court’s precedents are binding on state courts under AEDPA, our precedents may provide guidance as we review state-court determinations.”). Where, as here, a higher state court has denied a claim without explanation, federal courts “look through” that denial to the last reasoned state decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-806, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Shackleford v. Hubbard, 234 F.3d 1072, n. 2 (9th Cir.2000), cert. denied, 534 U.S. 944, 122 S.Ct. 324, 151 L.Ed.2d 242 (2001). Discussion The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A person alleging a due process violation must first demonstrate that he or she was deprived of a liberty or property interest protected by the Due Process Clause, and then show that the procedures that led to the deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 459-460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir.2002). In the parole context, a prisoner alleging a due process claim must demonstrate the existence of a protected liberty interest in parole, and the denial of one or more of the procedural protections that must be afforded when a prisoner has a liberty interest in parole. The Supreme Court held in 1979, and reiterated in 1987, that “a state’s statutory scheme, if it uses mandatory language, creates a presumption that parole release will be granted when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest.” ' McQuillion, 306 F.3d at 901 (citing Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) and Board of Pardons v. Allen, 482 U.S. 369, 373, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987)). The Ninth' Circuit has held that California’s" }, { "docid": "5303448", "title": "", "text": "not provide a liberty interest in parole. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979). Therefore, appellant must look to District of Columbia law for his asserted liberty interest in parole. State regulations may give rise to a constitutionally protected liberty interest if they contain substantive limitations on official discretion, embodied in mandatory statutory or regulatory language. See Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). In Greenholtz, the Supreme Court determined that the language in the Nebraska parole statute established a presumption that release would be granted absent specified findings. The Nebraska statute directed that whenever the Board of Parole considers whether to release an inmate who has served the minimum time necessary for parole, it “shall order his release unless it is of the opinion his release should be deferred because [one of four specific risk factors exists].” Greenholtz, 442 U.S. at 11, 99 S.Ct. at 2106 (emphasis added). The mandatory language sufficiently restricted the Board’s parole decisions so as to give rise to a protecti-ble liberty interest in parole release. In Board of Pardons v. Allen, 482 U.S. 369, 376, 107 S.Ct. 2415, 2419, 96 L.Ed.2d 303 (1987), the Supreme Court reached the same conclusion with respect to Montana’s parole statute. That statute stated that “the board shall release on parole ... any person confined ... when in its opinion there is reasonable probability that the prisoner can be released without detriment....” Id. at 376, 107 S.Ct. at 2420 (emphasis added) (citations omitted). Again, the Court determined that the “shall” language established a protectible interest in parole release. Here, the District of Columbia Code provides no substantive limitations on the Board’s authority to grant parole which would create a liberty interest. The parole statute provides: Whenever it shall appear to the Board of Parole that there is reasonable probability that a prisoner will live and remain at liberty without violating the law, that his release is not incompatible with the welfare of society, and that he has served the minimum" }, { "docid": "15431561", "title": "", "text": "furlough history, if any, program and activity participation, any record of escapes or attempted escapes and an inquiry ... into whether the resident can be trusted to return to the correctional facility at a designated time and not commit any criminal acts while on furlough. These eligibility requirements do constitute substantive predicates intended to guide the decision whether to grant a furlough. And the fact that several of these criteria — i.e., trustworthiness; responsibility— are subjective and predictive does not negate the possibility of a liberty interest. See Board of Pardons v. Allen, 482 U.S. 369, 374-76, 107 S.Ct. 2415, 2418-20, 96 L.Ed.2d 303 (1987). Absent from the regulations, however, is any mandatory language directing that a furlough must be granted to any inmate who satisfies the eligibility requirements. The fact that the word “shall” appears at various points does not avail plaintiff. “[T]he mandatory language requirement is not an invitation to courts to search regulations for any imperative that might be found. The search is for relevant mandatory language....” Thompson, 490 U.S. at 464 n. 4, 109 S.Ct. at 1911 n. 4. The regulations simply state that an inmate sat isfying the listed criteria shall be “eligible” for parole. And eligibility is not the same as entitlement. See, e.g., Francis v. Fox, 838 F.2d 1147, 1149 (11th Cir.1988) (regulation “states not who must receive work-release, but simply who is eligible for work-release; the Corrections Department still must exercise discretion in choosing suitable prisoners”); Mahfouz v. Lockhart, 826 F.2d 791, 793 (8th Cir.1987) (same). Similarly, the language in § 463.08(1)(a)— stating that a “decision to approve a furlough shall be based upon the resident’s ability to conduct himself responsibly”— imposes no restrictions as to when a furlough can be denied. The regulations at no point state that an inmate “shall” be released “when,” or “if,” or “subject to,” or “unless” — terminology that has been held to create a liberty interest in this context. See, e.g., Allen, 482 U.S. at 378, 107 S.Ct. at 2421; Greenholtz, 442 U.S. at 11-12, 99 S.Ct. at 2106; Bermudez v. Duenas, 936 F.2d 1064," }, { "docid": "7534732", "title": "", "text": "correctional facility and was released in October, 1996. After Welch’s initial plea, the United States Department of Justice (“DOJ”) instituted deportation proceedings against him under two subsections of the Immigration and Naturalization Act. See 8 U.S.C. § 125i(a)(2)(A)(iii)(authorizing deportation for conviction of an “aggravated felony”); 8 U.S.C. § 1251(a)(2)(C)(authorizing deportation for unlawful possession of a firearm). In August, 1997, following his release, an immigration judge ordered Welch deported to Panama pursuant to § 1227(a)(2) (A) (iii). Welch appealed the order to the Board of Immigration Appeals, and the appeal was denied on July 8, 1998. In October, 1998, the DOJ took Welch into custody and placed him in detention pending his déportation. The removal process was delayed however, as the Immigration and Naturalization Service (“INS”) did not receive the necessary paperwork from the Panama Consulate in order to complete deportation proceedings. While Welch remained in detention, on April 22, 1999, the state charges for which he had pled guilty were vacated in state court on collateral review. On that same day, Maryland entered into an agreement with Welch in which the felony charges were dropped and he instead pled guilty to six misdemeanor charges of simple assault and one misdemeanor charge of illegally wearing or carrying a handgun. The court imposed a sentence of less than one year and credited Welch for the time served previously, which resulted in no new time in detention. The DOJ ceased its attempt to deport Welch based upon his prior felony convie- tions but moved to reopen the removal proceedings on the ground that the plea to the new firearm conviction rendered him deportable under 8 U.S.C. § 1227(a)(2)(C). On October 28, 1999, the Board of Immigration Appeals granted the motion. The DOJ continued to detain Welch based upon the Immigration and Naturalization Act’s mandate of such detention pending a final removal determination. See 8 U.S.C. § 1226(c). While in detention, Welch filed a petition for a writ of habeas corpus with the District Court of Maryland, contending that his indefinite detention without the possibility of bail by the DOJ violated his Fifth Amendment" }, { "docid": "12107689", "title": "", "text": "review the district court’s determination pursuant to 28 U.S.C. § 1291, and we review de novo its grant of summary judgment and finding of qualified immunity. See Mabe v. San Bernardino County, Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir.2001); Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir.2007). Discussion The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law-” U.S. Const, amend. XIV, § 1. Our analysis of due process claims proceeds in two steps. “[T]he first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (citation omitted). “A liberty interest may arise from either of two sources: the due process clause itself or state law.” Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir.1986). Carver concedes that the Due Process Clause does not create a liberty interest in an inmate’s “conditional ] release[ ] before the expiration of a valid sentence.” Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Rather, he argues that Washington’s statutory scheme governing early release into community custody “uses mandatory language, ‘creating] a presumption that ... release will be granted’ ... unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest.” McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir.2002) (quoting Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100; citing Bd. of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987)). As in prior cases, our task here is to apply the well-established mandatory language rule governing state-created liberty interests set forth by the Supreme Court in Green- holtz and Allen to the Washington sex offender statutory scheme at issue. See, e.g., Sass v. Cal. Bd. of Prison Terms, 461 F.3d" }, { "docid": "19897703", "title": "", "text": "that led to the deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 459-460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir.2002). In the parole context, a prisoner alleging a due process claim must demonstrate the existence of a protected liberty interest in parole, and the denial of one or more of the procedural protections that must be afforded when a prisoner has a liberty interest in parole. The Supreme Court held in 1979, and reiterated in 1987, that “a state’s statutory scheme, if it uses mandatory language, creates a presumption that parole release will be granted when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest.” ' McQuillion, 306 F.3d at 901 (citing Greenholtz v. Inmates of Nebraska Penal, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) and Board of Pardons v. Allen, 482 U.S. 369, 373, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987)). The Ninth' Circuit has held that California’s parole scheme creates a cognizable liberty interest in release on parole because Penal Code § 3041 uses mandatory language and is similar to the Nebraska and Montana statutes addressed in Greenholtz and Allen, respectively. McQuillion, 306 F.3d at 901-902. As the Ninth Circuit has explained, “Section 3041 of the California Penal Code creates in every inmate a cognizable liberty interest in parole which is protected by the procedural safeguards of the Due Process Clause,” and that interest arises “upon the incarceration of the inmate.” Biggs v. Terhune, 334 F.3d 910, 914-915 (9th Cir.2003). Respondent contends that McQuillion is no longer good law because of an intervening decision of the California Supreme Court. [Answer at 5-8]. It is true, of course, that after the Ninth Circuit’s decision in McQuillion, the California Supreme Court addressed a portion of the California parole statute. That decision, howeyer, does not mean what respondent says it means, and it does not undercut McQuillion. In In re Dannenberg, 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783 (2005), cert. denied, — U.S.-," }, { "docid": "6693400", "title": "", "text": "a sawed-off shotgun, shot and killed a police officer. After pleading guilty, Sharp received an indeterminate sentence of 30 to 125 years. Both Heidelberg and Sharp have been denied parole on several occasions. After the last denial, they filed this petition which the district court summarily dismissed. Heidelberg and Sharp filed a joint request for a certificate of appealability. It is well established that “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). While there is no constitutional right to parole, a state may create a protected liberty interest in parole through its statutes and regulations governing the parole decision-making process. See id. at 12, 99 S.Ct. 2100. A state creates an expectation of release that rises to the level of a liberty interest within the meaning of the Due Process Clause if its parole system requires release whenever a parole board or similar authority determines that the necessary prerequisites exist. See Board of Pardons v. Allen, 482 U.S. 369, 376, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). The Illinois parole release statute at issue in this case provides in relevant part: le) The Board shall not parole a person eligible for parole if it determines that: (1) there is a substantial risk that he will not conform to reasonable conditions of parole; or (2) his release at that time would deprecate the seriousness of his offense or promote disrespect for the law; or (3) his release would have a substantially adverse effect on institutional discipline. 730 ILCS 5/3-3-5(c) (1998) (formerly Ill.Rev. Stat. ch. 38, ¶ 1003 — 3—5(c)). Instead of directing the Board when to release an eligible inmate, Illinois has stated the rule in the negative; the Board shall not release the inmate if one of the above conditions exists. This court first considered Illinois’ parole release statute in Scott v. Illinois Parole and Pardon Bd., 669 F.2d 1185 (7th Cir.1982). Because the Illinois" }, { "docid": "7102925", "title": "", "text": "KRAVITCH, Circuit Judge: Frederick Francis, currently on parole from the Alabama penal system, was convicted of robbery and sentenced to prison for twenty-five years. Prison officials twice recommended Francis for participation in Alabama’s work-release program. See Ala.Code § 14-8-2 (1982). Francis was denied work-release both times by the Central Review Board of the Department of Corrections’ Classification and Records Division because his crime involved serious physical injury to his victim and the Board expected negative community reaction to a grant of work-release to Francis. The Director of Corrections denied Francis’ appeals. Francis filed this action against various prison officials under 42 U.S.C. § 1983, alleging that the Corrections Department’s decision to deny him work-release violated the due process clause of the fourteenth amendment. Francis also alleged that the application to him of the Department’s Regulation 410, establishing the criteria for eligibility to participate in the work-release program, violated the ex post facto clause of the Constitution. The district court granted summary judgment for all appellees, holding that Francis had no liberty interest protected by the due process clause in obtaining work-release. We affirm. Liberty interests protected by the due process clause of the fourteenth amendment may arise either from the Constitution itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). Francis does not contend that the Constitution gives him a right to work-release. Rather, he argues that the state of Alabama has created a liberty interest in work-release. The existence of a liberty interest in work-release arising from state law depends on the extent to which official discretion has been constrained by statute, regulation, or practice. Accord Board of Pardons v. Allen, — U.S. -, 107 S.Ct. 2415, 2419, 96 L.Ed.2d 303 (1987); Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979); Whitehorn v. Harrelson, 758 F.2d 1416, 1423 (11th Cir.1985). In particular, “[w]hen the statute is framed in discretionary terms there is not a liberty interest created.” Thomas v. Sellers, 691 F.2d 487, 489 (11th" }, { "docid": "22027585", "title": "", "text": "does not he for errors of state law.’ ” Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990)). As for the Due Process Clause, standard analysis under that provision proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989). Here, the Ninth Circuit held that California law creates a liberty interest in parole, see 606 F.3d, at 1213. While we have no need to review that holding here, it is a [562 U.S. 220] reasonable application of our cases. See Board of Pardons v. Allen, 482 U.S. 369, 373-381, 107 S. Ct. 2415, 96 L. Ed. 2d 303 (1987); Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). Whatever liberty interest exists is, of course, a state interest created by California law. There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. Id., at 7, 99 S. Ct. 2100, 60 L. Ed. 2d 668. When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication—and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California’s received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. Id., at 16, 99 S. Ct. 2100, 60 L. Ed. 2d 668. “The Constitution,” we" } ]

[ { "docid": "10677838", "title": "", "text": "that obligation the “heart” of the Railway Labor Act. Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969). Wildcat strikes were involved in Brotherhood of Ry. & S. S. Clerks, etc. v. Railroad Retirement Board, 99 U.S.App.D.C. 217, 239 F.2d 37 (1956) and National Airlines, Inc. v. International Ass’n of Machinists, 416 F.2d 998 (C.A.5, 1969). While there were other grounds in those cases for holding the strikes in violation of the Railway Labor Act, both of the Courts of Appeal noted the fact that wildcat strikes were involved and relied, in part, upon the requirements of Section 2 First in holding the strikes violative of the Railway Labor Act. In the first of these two cases, the Court referred to the unauthorized nature of the strike and, in the Opinion written by Judge Burger, stated (239 F.2d p. 44): “The Board has also concluded that the action of the Local in commencing the strike on September 24 violated Section 2, First of the Railway Labor Act. * * * The striking employees did not comply with their President’s order and the refusal to do so is a measure of how union discipline had broken down in the hostile atmosphere which developed. There is substantial basis in the record for the Board’s conclusion that such action by the Local disregarded the requirements of the Act to exert reasonable efforts to avoid interruption of commerce.” In the National Airlines case, supra, the Court stated (416 F.2d p. 1003, note 3): “[I]t would hardly serve the purpose of the Act to hold that wildcat strikes, such as the strike involved here, did not come within the statutory ban on self-help. Moreover, it should be noted that § 2 of the Act provides that ‘it shall be the duty of * * * employees to exert every reasonable effort to make and maintain agreements * * * and to settle all disputes * * * in order to avoid any interruption to commerce or to the operation of any carrier •X * -X" } ]

[ { "docid": "6620064", "title": "", "text": "interminable” process for dispute resolution, Detroit & Toledo Shore Line Railroad v. United Transportation Union, 396 U.S. 142, 149, 90 S.Ct. 294, 299, 24 L.Ed.2d 325 (1969), “neither party may unilaterally alter the status quo.” Brotherhood of Railroad Trainmen, 394 U.S. at 378, 89 S.Ct. at 1115. Moreover, even after the Act’s procedures are concluded and the parties released by the National Mediation Board, Section 5, First, of the RLA requires the parties to maintain the status quo, and therefor to refrain from engaging in self-help, for an additional thirty days. 45 U.S.C. § 156 (1982). As such, the Act’s status quo requirement, as a means to allow for collective bargaining while at the same time protecting the flow of interstate commerce, is central to the Act’s design. Detroit & Toledo Shore Line Railroad v. United Transportation Union, 396 U.S. 142, 150, 90 S.Ct. 294, 299, 24 L.Ed.2d 325 (1969). Since the purposes of these two Acts seemingly conflict, we first note that the Norris-LaGuardia Act was promulgated with the RLA already in existence. Also, legislative history shows that the “over-all policy of the Norris-LaGuardia Act [and the RLA] was the same.” Both Acts promote the free association of union groups and both favor the resolution of labor disputes through non-judicial means. This unity of purpose is especially clear in the Norris-LaGuardia Act’s “clean hands” provision, 29 U.S.C. § 108 (1982), which disallows the issuance of an injunction in favor of any party “who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.” See id. The foregoing purposes in mind, courts quickly came to the conclusion that the broad and outspoken policy of the Norris-LaGuardia Act could give way to the previously enacted Railway Labor Act only in unambiguous situations. Burlington Northern Railroad Co. v. Brotherhood of Maintenance of Way Employes, 481 U.S. 429, 107 S.Ct. 1841, 1851, 95 L.Ed.2d 381 (1987) (The RLA’s exception to the Norris-LaGuardia Act “is necessarily a limited one.”). The foregoing policies in mind, this Court" }, { "docid": "14462751", "title": "", "text": "is to prevent the union from striking and management from doing anything that would justify a strike. In the long run, delaying the time when the parties can resort to self-help provides time for tempers to cool, helps create an atmosphere in which rational bargaining can occur, and permits the forces of public opinion to be mobilized in favor of a settlement without a strike or a lockout.” Shore Line, 396 U.S. at 150, 90 S.Ct. 294. Only after the parties have fully exhausted the dispute resolution and re-negotiation processes does a CBA expire, freeing the parties from their contractual obligations and the RLA’s rules governing the preservation of the status quo. Cf. Pan Am. World Airways v. Int’l Bhd. of Teamsters, Chauffeurs & Helpers of America, 894 F.2d 36 (2d Cir.1990). While the status quo provisions are integral to the RLA, the “heart” of that statute is Section 2 (First), Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377-78, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969), which requires carriers and employees to “exert every reasonable effort to make [agreements,] ... [to] maintain agreements ... and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce,” 45 U.S.C. § 152 (First). The broad command of Section 2 (First) fills the interstices of the explicit status quo provisions: A carrier or its employees may invoke it either to ensure effective compliance with the explicit status quo provisions, see Chicago & Nw. Ry. Co. v. United Transp. Union, 402 U.S. 570, 578, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971) (“The strictest compliance with the formal procedures of the Act [the RLA] is meaningless if one party goes through the motions with ‘a desire not to reach an agreement.’ ”), or to further justify an injunction premised primarily on those provisions, see Shore Line, 396 U.S. at 152, 90 S.Ct. 294 (holding that the explicit status quo “provisions, together with [§ ] 2 First, form an integrated, harmonious scheme for preserving the status quo from the beginning" }, { "docid": "14693187", "title": "", "text": "mandates of the Railway Labor Act.” International Ass’n of Machinists v. Street, 367 U.S. at 772, 81 S.Ct. at 1802 (citing Virginian Ry. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937)). The RLA was enacted in 1926 following decades of often-violent labor unrest in the transportation industry that disrupted the national economy. It is designed to deter strikes in this critical economic sector by requiring rail and air carriers and certified labor representatives to participate in protracted rounds of “negotiation, mediation, voluntary arbitration, and conciliation” before resorting to self-help. Detroit & Toledo Shore Line R.R. v. United Transportation Union, 396 U.S. 142, 148-49, 90 S.Ct. 294, 298-99, 24 L.Ed.2d 325 (1969). The Supreme Court has upheld the issuance of injunctions to prevent violations of various RLA provisions. See, e.g., Detroit & Toledo Shore Line R.R., supra (status quo requirement pending exhaustion of “major dispute” resolution procedures); Brotherhood of Railroad Trainmen v. Chicago River & Indiana R.R., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957) (duty to arbitrate “minor disputes”). This is an unusual case in that the carrier and the union never initiated the RLA’s mediation procedures. After Virgin rejected the union’s overtures to negotiate, the union resorted to self-help. The District Court determined that the “various mandates” of the RLA required the union to go one step further — to seek judicial enforcement of its certification — before resorting to self-help. The validity of Judge Glas-ser’s injunction turns, then, on whether he correctly assessed the union’s legal obligations under the RLA once it met with Virgin’s rebuff. As the District Court properly observed, the union’s right to engage in secondary activity is dependent upon the validity of its primary strike against Virgin. See Consolidated Rail Corp. v. Brotherhood of Maintenance of Way Employees, 792 F.2d 303, 304 (2d Cir.1986) (per curiam). In Consolidated Rail, this Court held that when a union exhausts the RLA’s grueling negotiation procedures with a primary employer, and thus gains the right to strike, a federal court may not require the union to go through those" }, { "docid": "4427221", "title": "", "text": "§ 10 provides that after the creation of an Emergency Board and for 30 days after the Board has made its report to the President, ‘no change, except by agreement, shall be made by the parties to the controversy in the conditions out of which the dispute arose.’ These provisions must be read in conjunction with the implicit status quo requirement in the obligation imposed upon both parties by § 2, First, ‘to exert every reasonable effort’ to settle disputes without interruption to interstate commerce. * * Section 6, the section of immediate concern in this case, provides that ‘rates of pay, rules, or working conditions shall not be altered’ “While the quoted language of §§ 5, 6, and 10 is not identical in each case, we believe that these provisions, together with § 2, First, form an integrated, harmonious scheme for preserving the status quo from the beginning of the major dispute through the final 30-day ‘cooling-off’ period. Although these three provisions are applicable to different stages of the Act’s procedures, the intent and effect of each is identical so far as defining and preserving the status quo is concerned. The obligation of both parties during a period in which any of these status quo provisions is properly invoked is to preserve and maintain unchanged those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute.” Detroit & T. Shore Line R.R. Co. v. United Transp. Union, 1969, 396 U.S. 142, 150-153, 90 S.Ct. 294, 299, 24 L.Ed. 2d 325 (footnotes omitted). Once these procedures are exhausted, however, compulsory processes are at an end, and either party may resort to self-help or unilateral action. See, e. g., Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 1969, 394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d 344. No authority is empowered to decide the dispute unless the parties jointly agree to arbitration. Conversely, if the dispute is a “minor” one, that is, a controversy arising over the interpretation or application of" }, { "docid": "6620063", "title": "", "text": "union activity. The other Act establishing the framework within which a factual determination must be made in this case is the Railway Labor Act, 45 U.S.C. §§ 151-188 (1982). Like the Norris-LaGuardia Act, the RLA was enacted to advance a compelling public interest — the protection of interstate commerce. To achieve this end, the RLA seeks to maintain the status quo in a labor-management dispute for as long as possible before allowing a disruption of interstate commerce through self-help by either party. The RLA further provides specific dispute resolution mechanisms which must be employed in labor disputes involving carriers in interstate commerce. These procedures — including arbitration, mediation and possible action by a Presidential Emergency Board — are mandatory and must be exhausted before either party to the dispute may engage in self-help. Brotherhood of Railroad Trainmen v. Jacksonville Bulk Terminal Co., 394 U.S. 369, 378, 89 S.Ct. 1109, 1115, 22 L.Ed.2d 344 (1969). Central to the RLA’s purpose is the preservation of the status quo in the labor- management dispute. Throughout the Act’s “almost interminable” process for dispute resolution, Detroit & Toledo Shore Line Railroad v. United Transportation Union, 396 U.S. 142, 149, 90 S.Ct. 294, 299, 24 L.Ed.2d 325 (1969), “neither party may unilaterally alter the status quo.” Brotherhood of Railroad Trainmen, 394 U.S. at 378, 89 S.Ct. at 1115. Moreover, even after the Act’s procedures are concluded and the parties released by the National Mediation Board, Section 5, First, of the RLA requires the parties to maintain the status quo, and therefor to refrain from engaging in self-help, for an additional thirty days. 45 U.S.C. § 156 (1982). As such, the Act’s status quo requirement, as a means to allow for collective bargaining while at the same time protecting the flow of interstate commerce, is central to the Act’s design. Detroit & Toledo Shore Line Railroad v. United Transportation Union, 396 U.S. 142, 150, 90 S.Ct. 294, 299, 24 L.Ed.2d 325 (1969). Since the purposes of these two Acts seemingly conflict, we first note that the Norris-LaGuardia Act was promulgated with the RLA already in existence. Also," }, { "docid": "21065957", "title": "", "text": "of the RLA is “to encourage collective bargaining by the parties ‘in order to prevent, if possible, wasteful strikes and interruptions of interstate commerce.’ ” ALPA, 802 F.2d at 895 (quoting Detroit & Toledo Shore Line R.R. v. United Transp. Union, 396 U.S. 142, 148, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969) (footnote omitted)). To effectuate these purposes, the RLA imposes a substantive duty upon “all carriers, their officers, agents and employees to exert every reasonable effort to make and maintain agreements ... and to settle all disputes ... in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.” 45 U.S.C. § 152, First. This duty runs both to management and to labor, and it has been described as the “heart” of the RLA. See Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377-78, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969). Moreover, the duty to exert every reasonable effort to make and maintain agreements is a substantive legal duty which is enforceable by the courts. Chicago & N.W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 577, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971) (“[W]e think it plain that [45 U.S.C. § 152, First] was intended to be more than a mere statement of policy or exhortation to the parties; rather, it was designed to be a legal obligation, enforceable by whatever appropriate means might be developed on a case-by-case basis.”) The RLA sets forth a detailed sequence of steps that carriers and their employees (or their employees’ representatives) must follow in negotiating CBAs. First, the party seeking a change in rates of pay, rules or working conditions must give notice and confer with the other party. 45 U.S.C. § 156. If the parties remain unable to resolve their dispute after this conference, either or both of them may seek mediation by the NMB. See 45 U.S.C. § 155. If the mediation fails to produce agreement, the NMB must attempt to persuade the parties to submit to binding arbitration." }, { "docid": "14462789", "title": "", "text": "strict statutory conditions and court oversight— cannot be described fairly as a unilateral divergence from the status quo, and does not trigger a reciprocal right to strike. Northwest’s resort to § 1113 therefore did not affect the AFA’s § 2 (First) duties, which keep the union at the bargaining table and off the picket line. I We affirm the anti-strike injunction on the basis of the AFA’s § 2 (First) duty. Because “the vagueness of the obligation under § 2 (First) could provide a cover for freewheeling judicial interference in labor relations,” Chicago & N.W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 583, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971), the section is understood to incorporate an “implicit status quo requirement,” see Detroit & Toledo Shore Line R.R. v. United Transp. Union, 396 U.S. 142, 151 & n. 18, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969). Given this implicit status quo obligation, strikes are generally inconsistent with exerting every reasonable effort “to settle disputes without interruption to interstate commerce,” id. at 151, 90 S.Ct. 294. But if a debtor-carrier’s resort to § 1113 violates its duty to maintain the status quo, and if that duty is reciprocal, id. at 154-55, 90 S.Ct. 294, then a union’s strike might be fully consistent with § 2 (First). In my view, then, we cannot avoid deciding the antecedent question whether Northwest violated its duty to maintain the status quo. The RLA does not expressly reference a “status quo,” yet the Supreme Court has read it to require that “[wjhile the dispute is working its way through the[ ] [RLA’s] stages, neither party may unilaterally alter the status quo.” Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969) (emphasis added). The obligation is “an affirmative legal duty upon both employers and unions alike — which is enforceable by the courts.” United Air Lines, Inc. v. Int’l Ass’n of Machinist & Aero. Workers, 243 F.3d 349, 363 (7th Cir.2001) (emphasis in original). Only “if the parties exhaust [RLA] procedures and remain at loggerheads," }, { "docid": "4427222", "title": "", "text": "effect of each is identical so far as defining and preserving the status quo is concerned. The obligation of both parties during a period in which any of these status quo provisions is properly invoked is to preserve and maintain unchanged those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute.” Detroit & T. Shore Line R.R. Co. v. United Transp. Union, 1969, 396 U.S. 142, 150-153, 90 S.Ct. 294, 299, 24 L.Ed. 2d 325 (footnotes omitted). Once these procedures are exhausted, however, compulsory processes are at an end, and either party may resort to self-help or unilateral action. See, e. g., Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 1969, 394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d 344. No authority is empowered to decide the dispute unless the parties jointly agree to arbitration. Conversely, if the dispute is a “minor” one, that is, a controversy arising over the interpretation or application of an existing collective agreement, either party, upon impasse, may submit the grievance to final and binding arbitration before the National Railroad Adjustment Board or a system board of adjustment established by the parties, § 3, First (m), Second, 45 U.S.C.A. § 153, First (m), Second. While resort to self-help, such as strikes, is precluded in minor disputes, see e. g., Brotherhood of Railroad Trainmen v. Chicago River & Ind. R.R., Co., 1957, 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622; Railway Express Agency, Inc. v. Brotherhood of Railway, Airline, and Steamship Clerks, etc., 5 Cir. 1971, 437 F.2d 388; Flight Engineers Intern. Ass’n v. American Airlines, Inc., 5 Cir. 1962, 303 F.2d 5, there is no general provision in the Act prohibiting a party from acting unilaterally upon its interpretation of the contract pending exhaustion of the grievance procedures. See, e. g., Switchmen’s Union of North America v. Central of Georgia Ry. Co., 5 Cir. 1965, 341 F.2d 213, cert. denied, Brotherhood of Locomotive Firemen and Enginemen v. Central of Georgia Ry. Co., 382" }, { "docid": "12118154", "title": "", "text": "would induce a strike. In Detroit & Toledo Shore Line Railroad the Court ruled that the status quo requirement of the RLA was designed “to prevent the union from striking and management from doing anything that would justify a strike.” 396 U.S. at 150, 90 S.Ct. at 299. There is no question that the RLA’s status quo requirement is intended to prevent a strike during the cooling-off period. See Manning v. American Airlines, Inc., 329 F.2d 32, 35 (2d Cir.) (noting that the status quo requirement is “to prevent rocking of the boat by either side until the procedures of the Railroad Labor Act [have been] exhausted”), cert. denied, 379 U.S. 817, 85 S.Ct. 33, 13 L.Ed.2d 29 (1964); American Airlines, Inc. v. Transport Workers Union, 57 L.R.R.M. (BNA) 2484, 2487 (S.D.N.Y. Apr. 17, 1964) (“The resort to economic self-help during the pendency of the procedures of the Railway Labor Act, by either party to a dispute, is inconsistent with the requirements of that Act.”). To avoid any misunderstanding which may arise from a cursory reading of the district court’s opinion, we must also note that union conduct, which may not be able to be classified literally as a strike, but which has the consequences of a strike, is also prohibited during the cooling-off period. See Detroit & Toledo Shore Line Railroad, 396 U.S. at 150, 152-53, 90 S.Ct. at 299, 300-01. As the court in United Air Lines, Inc. v. International Association of Machinists, 54 L.R.R.M. (BNA) 2154 (N.D. Ill. Sept. 5, 1963), noted: The concerted refusal of overtime, slow-downs, sit-ins, strikes and other harassments by [the union and its members] is a violation of the duty imposed by the Railway Labor Act [i.e., section 2, First] to exert every reasonable effort to settle all disputes in order to avoid any interruption to commerce or to the operation of any carrier. Id. at 2156. See Detroit & Toledo Shore Line Railroad, 396 U.S. at 152, 90 S.Ct. at 300 (status quo provisions of the RLA “together with § 2 First, form an integrated, harmonious scheme for preserving the status" }, { "docid": "12118115", "title": "", "text": "growing out of any dispute between the carrier and the employees thereof.’ ” Id. at 377-78, 89 S.Ct. at 1115 (quoting 45 U.S.C. § 152, First (1982)). See 45 U.S.C. § 151a(1) (one purpose of the RLA is “[t]o avoid any interruption to commerce or to the operation of any carrier engaged therein”). Accord Chicago & North Western Railway v. United Transportation Union, 402 U.S. 570, 574, 91 S.Ct. 1731, 1734, 29 L.Ed.2d 187 (1971). The RLA was enacted to encourage collective bargaining by the parties “in order to prevent, if possible, wasteful strikes and interruptions of interstate commerce,” especially in cases where major disputes are involved. Detroit & Toledo Shore Line Railroad v. United Transportation Union, 396 U.S. 142, 148, 90 5. Ct. 294, 298, 24 L.Ed.2d 325 (1969) (footnote omitted). In settling major disputes such as the one involved here under the RLA a two-stage process is followed. The party seeking a change in rates of pay, rules, or working conditions must first give notice and confer with the other party. 45 U.S.C. § 156 (1982). See 45 U.S.C. § 152, Second (1982). If this conference fails to resolve the dispute, either or both parties may seek the mediation services of the National Mediation Board. The NMB may also act, sua sponte, in an emergency situation. 45 U.S.C. § 155, First (1982). If mediation by the NMB proves to be unsuccessful, the NMB is required to endeavor to induce the parties to submit the matter to binding arbitration. However, arbitration cannot be forced upon the parties; rather, arbitration is permitted only where the parties mutually consent. 45 U.S.C. §§ 155, First, 157 (1982). If arbitration is rejected and if the dispute threatens “substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service,” the NMB must contact the President who is then free to create an emergency board to “investigate and report respecting such dispute.” 45 U.S.C. § 160 (1982). Throughout this first step of the mandated dispute resolution, the parties are barred from unilaterally altering the established" }, { "docid": "12118114", "title": "", "text": "error to hold the airline in violation of the RLA with respect to the Group of 500 and the rebid procedure. Even if its actions are unlawful, United contends that ALPA is not entitled to injunctive relief. ALPA cross-appeals alleging that, among other things, the court erred in holding that United’s hiring of replacements was lawful and in ruling that members of the Group of 500 were not entitled to either immediate reinstatement or back pay. II. Before reaching the merits of this case, it is necessary that we first briefly examine the relevant provisions of the RLA. As the Supreme Court noted in Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969), the “heart” of the RLA is the duty placed on management and labor “ ‘to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes ... in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.’ ” Id. at 377-78, 89 S.Ct. at 1115 (quoting 45 U.S.C. § 152, First (1982)). See 45 U.S.C. § 151a(1) (one purpose of the RLA is “[t]o avoid any interruption to commerce or to the operation of any carrier engaged therein”). Accord Chicago & North Western Railway v. United Transportation Union, 402 U.S. 570, 574, 91 S.Ct. 1731, 1734, 29 L.Ed.2d 187 (1971). The RLA was enacted to encourage collective bargaining by the parties “in order to prevent, if possible, wasteful strikes and interruptions of interstate commerce,” especially in cases where major disputes are involved. Detroit & Toledo Shore Line Railroad v. United Transportation Union, 396 U.S. 142, 148, 90 5. Ct. 294, 298, 24 L.Ed.2d 325 (1969) (footnote omitted). In settling major disputes such as the one involved here under the RLA a two-stage process is followed. The party seeking a change in rates of pay, rules, or working conditions must first give notice and confer with the other party. 45 U.S.C." }, { "docid": "3713417", "title": "", "text": "must file a notice pursuant to section 6 of the RLA, 45 U.S.C. § 156, and confer with the other party. 42 U.S.C. § 152, Seventh. If the parties are unable to resolve their dispute, they may invoke the services of the NMB or the Board may, in an emergency situation, proffer its services. 45 U.S.C. § 155, First. If the NMB is unsuccessful in helping to resolve the dispute, the Board must attempt to induce the parties to agree to arbitration. Said arbitration is not, however, mandatory. Id. If the dispute is not resolved under these provisions of the Act and the NMB finds the dispute should “threaten substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service,” the NMB must contact the President of the United States who may set up an Emergency Board to evaluate the dispute and report to him. 45 U.S.C. § 160. Throughout this period, the parties may not alter the status quo and no change may be made in those rates of pay, working conditions or rules which are the subject of the dispute. It is only after all statutory procedures have been exhausted that the parties may engage in self help. Congress, in enacting these detailed procedures, sought “to encourage collective bargaining by railroads and their employees in order to prevent, if possible, wasteful strikes and interruptions of interstate commerce.” Detroit & Toledo Shore Line R.R., 396 U.S. at 148, 90 S.Ct. at 298 (footnote omitted). This detailed statutory scheme has bargaining as its major thrust. At the same time, it seeks to avoid any interruption in commerce. Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377-78, 89 S.Ct. 1109, 1114-15, 22 L.Ed.2d 344 (1969). The Act attempts to provide the parties with every opportunity to resolve their labor disputes through bargaining and negotiation. The Supreme Court recognized the central role of bargaining and the continuity of the relationship between management and labor in industries subject to the RLA, in holding that where terms in a collective bargaining" }, { "docid": "18756146", "title": "", "text": "6, 45 U.S.C. § 156 (“rates of pay, rules, or working conditions shall not be altered by the carrier until [bargaining and mediation have been exhausted]”); RLA § 2 Seventh, 45 U.S.C. § 152. Those processes have been described by the Supreme Court as “almost interminable.” 396 U.S. at 149, 90 S.Ct. at 299. They operate as follows: A party desiring to effect a change of rates of pay, rules, or working conditions must give advance written notice. § 6. The parties must confer, § 2 Second, and if conference fails to resolve the dispute, either or both may invoke the services of the National Mediation Board, which may also proffer its services sua sponte if it finds a labor emergency to exist. § 5 First. If mediation fails, the Board must endeavor to induce the parties to submit the controversy to binding arbitration, which can take place, however, only if both consent. §§ 5 First, 7. If arbitration is rejected and the dispute threatens “substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service, the Mediation Board shall notify the President,” who may create an emergency board to investigate and report on the dispute. § 10. While the dispute is working its way through these stages, neither party may unilaterally alter the status quo. §§ 2 Seventh, 5 First, 6, 10. Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378, 89 S.Ct. 1109, 1115, 22 L.Ed.2d 344 (1969). In the end, however, the process is merely conciliatory. Unlike minor disputes, which parties must submit to binding arbitration, major disputes will be resolved, through a series of seemingly endless negotiations, by the parties themselves, or will not be resolved at all; agreements will not be imposed upon the parties. Once the process is finally exhausted and it becomes clear that the parties will not reach agreement, the parties are released from their status quo obligations, and are free to resort to “self-help” — management to implement its proposed changes, and the workers to strike. Id. at" }, { "docid": "10767748", "title": "", "text": "threatens “substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service, the Mediation Board shall notify the President,” who may create an emergency board to investigate and report on the dispute. § 10. While the dispute is working its way through these stages, neither party may unilaterally alter the status quo. § 2 Seventh, 5 First, 6, 10. Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., supra, 394 U.S. at 378, 89 S.Ct. at 1115. In general, when a contract provision is opened to negotiation, the provision is not kept in effect by operation of the RLA once the procedures for major dispute resolution are exhausted. To encourage voluntary settlement of major disputes, the RLA postpones the time for self-help remedies. However, if after reasonable efforts the parties have exhausted the bargaining procedures specified by the RLA without agreement, the statute does not bar such remedies, including a strike. For [the] settlement [of major disputes] the statutory scheme retains throughout the traditional voluntary processes of negotiation, mediation, voluntary arbitration, and conciliation. Every facility for bringing about agreement is provided and pressures for mobilizing public opinion are applied. The parties are required to submit to the successive procedures designed to induce agreement. § 5 First (b). But compulsions go only to insure that those procedures are exhausted before resort can be had to self-help. Elgin, supra, 325 U.S. at 725, 65 S.Ct. at 1291. See also Jacksonville Terminal Co., supra, 394 U.S. at 379-80, 89 S.Ct. at 1115-16. All concede that the primary strike by the flight attendants did not commence until the major dispute resolution procedures of the Act had been exhausted. We think there can be no question about the meaning of the military no-strike clause in this case. We agree with the conclusions of the district court in this regard. As Judge Peckham stated: The clear import of this provision is to extend the no-strike obligation of the flight attendants beyond the term of the collective-bargaining agreement, even beyond the expiration of the 30-day cooling-off period mandated" }, { "docid": "3529821", "title": "", "text": "termination notices to approximately 940 IAMAW workers. The Union promptly filed a motion to dissolve the orders enjoining and restraining the strike and, in addition, an “Application for Rule to Show Cause and Preliminary Injunction,” seeking to require the reinstatement of all discharged employees. The district court denied the motion and application, and the Union appeals. The Union’s position is that the discharge of the striking employees violated the status quo or “freeze” provisions of the Railway Labor Act, and that the discharged employees are therefore entitled to reinstatement. The applicable provision of the Railway Labor Act is Section 6, 45 U.S.C. § 156, which provides in relevant part: In every case where such notice of intended change has been given, or conferences are being held with reference thereto, or the services of the Mediation Board have been requested by either party * * * rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon, as required by section 155 of this title * * *. [Emphasis added]. “The purpose of § 6 was to prevent rocking of the boat by either side until the procedures of the Railway Labor Act Were exhausted.” Manning v. American Airlines, Inc., 2d Cir. 1964, 329 F.2d 32, 35. “[T]he legislative history of the statute shows the ‘freeze’ provisions were intended to enforce a ‘cooling off’ period upon both labor and management -x- * Rutland Railway Corp. v. Brotherhood of Locomotive Engineers, 2d Cir. 1962, 307 F.2d 21, 45, n. 11 (dissenting opinion). Consequently, where a dispute is working its way through the processes provided by the Act, “neither party may unilaterally alter the status quo,” Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 1969, 394 U.S. 369, 89 S.Ct. 1109, 1115, 22 L.Ed.2d 344, and “no self-help is permitted.” Brotherhood of Railroad Trainmen v. Akron & B.B.R. Co., 1967, 128 U.S.App.D.C., 59, 385 F.2d 581, 597. “[T]he parties may not * * * have resort to either the strike or the lockout before the procedures provided by the Act have been" }, { "docid": "21065959", "title": "", "text": "If either or both of the parties rejects the offer of arbitration and the dispute threatens “substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of substantial transportation service,” the NMB must contact the President who may then create an emergency board to “investigate and report respecting such dispute.” 45 U.S.C. § 160. If the NMB releases the parties from mediation before an agreement has been reached, the RLA imposes a 30-day “cooling-off’ period upon the parties. Throughout this entire lengthy negotiation process, carriers and unions are required to maintain the status quo with respect to rates of pay, rules, and working conditions. See 45 U.S.C. §§ 155, 156. The status quo provisions are “central” to the RLA’s design, see Shore Line, 396 U.S. at 150, 90 S.Ct. 294, and they “must be read in conjunction with the implicit status quo requirement in the obligation imposed upon both parties by [§ 152], First ‘to exert every reasonable effort’ to settle disputes without interruption to interstate commerce” as part of an “integrated, harmonious scheme for preserving the status quo from the beginning of a major dispute through the final 30-day ‘cooling-off period.” Id. at 151, 152, 90 S.Ct. 294. If either side unilaterally alters the status quo during the bargaining and mediation process, a court may issue an injunction to put a stop to that party’s illegal self-help and to restore the status quo, and it may do so even without the traditional showing of irreparable injury to the other party. See Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n., 491 U.S. 299, 303, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989). This rule authorizes courts to enjoin not only strikes but also “union conduct ... which has the consequences of a strike,” such as refusal of overtime, slowdowns, and sit-ins. See generally ALPA, 802 F.2d at 906 (citation omitted). However, when a carrier seeks an injunction against a union, “a court must look not only to the RLA but also to the NLGA to determine whether the court has jurisdiction.” See Delta Air" }, { "docid": "15260392", "title": "", "text": "unilateral changes. In Williams v. Jacksonville Terminal Co., 315 U.S. 386, 403, 62 S.Ct. 659, 669, 86 L.Ed. 914 (1942), the Supreme Court declared that the Railway Labor Act’s status quo provisions were “aimed at preventing changes in working conditions previously fixed by collective bargaining agreements.” In other words, “pending ... negotiations, where no collective bargaining agreements are or have been in effect, the carrier” is free to make unilateral changes. Id. at 402, 62 S.Ct. at 669. However, the Su preme Court severely circumscribed the Williams holding in Detroit & Toledo Shore Line Ry. Co. v. United Transportation Union, 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969). In Detroit & Toledo, the Court held that the status quo provisions obligate both union and management to maintain not only the working conditions contained in an existing collective bargaining agreement, but also “those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute.” Id. at 153, 90 S.Ct. at 301. The Court added: “[Cjlearly these conditions need not be covered in an existing agreement.” Id. The rationale for this holding is that if management is permitted to resort to self-help before exhaustion of the Act’s negotiation and mediation procedures, “the union cannot be expected to hold back its own economic weapons, including the strike.” Id. at 155, 90 S.Ct. at 302. In addition, “[unilateral changes made while the employees’ representative is seeking to bargain ... interfere with the normal course of negotiations by weakening the union’s bargaining position.\" Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1423 (1958). In Detroit & Toledo, the union invoked § 6 of the Act, 45 U.S.C. § 156, which, along with § 5 First and § 10, 45 U.S.C. §§ 155 First, 160, comprises the status quo portion of the Act. Detroit & Toledo at 150-51, 90 S.Ct. at 299-300. In this appeal, however, none of these three provisions has been invoked. This raises a question specifically left open by" }, { "docid": "14462750", "title": "", "text": "Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 149, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969). During the pendency of this renegotiation process, the RLA “obligate[s] [the parties] to maintain the status quo.” Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 302, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989). The term “status quo,” found throughout the case law, appears nowhere in the RLA. Several of the RLA’s provisions require that parties to a CBA governed by the RLA maintain objective working conditions during the pendency of any dispute arising under (or during the re-negotiation of) their CBA. See 45 U.S.C. §§ 152 (Seventh), 155 (First), 156, 160 ; see also Aircraft Mechs. Fraternal Ass’n v. Atl. Coast Airlines (“Atlantic Coast II ”), 125 F.3d 41, 43 (2d Cir.1997) (explaining the statutory basis for the requirement that both parties maintain the status quo). The Supreme Court has described the function of these status quo provisions as follows: “The [RLA]’s status quo requirement is central to its design. Its immediate effect is to prevent the union from striking and management from doing anything that would justify a strike. In the long run, delaying the time when the parties can resort to self-help provides time for tempers to cool, helps create an atmosphere in which rational bargaining can occur, and permits the forces of public opinion to be mobilized in favor of a settlement without a strike or a lockout.” Shore Line, 396 U.S. at 150, 90 S.Ct. 294. Only after the parties have fully exhausted the dispute resolution and re-negotiation processes does a CBA expire, freeing the parties from their contractual obligations and the RLA’s rules governing the preservation of the status quo. Cf. Pan Am. World Airways v. Int’l Bhd. of Teamsters, Chauffeurs & Helpers of America, 894 F.2d 36 (2d Cir.1990). While the status quo provisions are integral to the RLA, the “heart” of that statute is Section 2 (First), Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377-78, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969), which requires carriers and employees" }, { "docid": "4049899", "title": "", "text": "prevent the union from striking and management from doing anything that would justify a strike. In the long run, delaying the time when the parties can resort to self-help provides time for tempers to cool, helps create an atmosphere in which rational bargaining can occur, and permits the forces of public opinion to be mobilized in favor of a settlement without a strike or lockout. Moreover, since disputes usually arise when one party wants to change the status quo without undue delay, the power which the Act gives the other party to preserve the status quo for a prolonged period will frequently make it worthwhile for the moving party to compromise with the interests of the other side and thus reach agreement without interruption to commerce. Detroit & Toledo Shore Line Railroad Co. v. United Transportation Union, 396 U.S. 142, 150, 90 S.Ct. 294, 299, 24 L.Ed.2d 325 (1969). Procedurally, in case No. A-12260, which includes Conrail, the BMWE Union and all issues, the ball is in the National Mediation Board’s court. It can press the parties for more intense negotiations, or it can declare that mediation has failed and press the parties to accept arbitration. Until it does the latter, and Conrail has refused to accept arbitration, there is no basis, under Brotherhood of Railroad Trainmen v. Toledo, Peoria & Western Railroad, supra, to find that Conrail has failed to fulfill its duties under the Railway Labor Act, or to have made every reasonable effort to settle the dispute within the meaning of § 8 of the Norris LaGuardia Act. Contrary to the BMWE Union’s assertion, neither party to labor negotiations under the Railway Labor Act is obligated to agree to the other side’s proposals. As the Court of Appeals for the Fifth Circuit has stated: It must be kept in mind that [t]here is no compulsion on the parties to agree at any stage of the procedure. They are not compelled to reach an agreement by collective bargaining, to follow the recommendations of the Mediation Board, to submit to arbitration or to follow any recommendation which a Presidential" }, { "docid": "22453560", "title": "", "text": "325 (1969). . These were concisely stated in Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969) : The Act provides a detailed framework to facilitate the voluntary settlement of major disputes. A party desiring to effect a change of rates of pay, rules, or working conditions must give advance written notice. § 6. The parties must confer, § 2 Second, and if conference fails to resolve the dispute, either or both may invoke the services of the National Mediation Board, which may also proffer its services sua sponte if it finds a labor emergency to exist. § 5 First. If mediation fails, the Board must endeavor to induce the parties to submit the controversy to binding arbitration, which can take place, however, only if both consent. §§ 5 First, 7. If arbitration is rejected and the dispute threatens “substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service, the Mediation Board shall notify the President,” who may create an emergency board to investigate and report on the dispute. § 10. While the .dispute is working its way through these stages, neither party may unilaterally alter the status quo. §§ 2 Seventh, 5 First, 6, 10. . Brotherhood of Railway & S. S. Clerks v. Florida E.C.Ry., 384 U.S. 238, 246, 86 S.Ct. 1420, 1424, 16 L.Ed.2d 501 (1966). . Detroit & Toledo Shore Line R. R. v. UTU, supra, 396 U.S. at 150, and 149, 90 S.Ct. 294, at 299. . Int’l Assn, of Machinists and Aerospace Workers v. National Mediation Board [National Airlines], 138 U.S.App.D.C. 96, 425 F.2d 527 (1970). . Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., supra, 394 U.S. at 378, 89 S.Ct. at 1115: Nowhere does the text of the Railway Labor Act specify what is to take place once these procedures have been exhausted without yielding resolution of the dispute. Implicit in the statutory scheme, however, is the ultimate right of the disputants to resort to self-help —“the inevitable alternative in a" } ]

[ { "docid": "9592219", "title": "", "text": "suit was barred by the Eleventh Amendment. Second, the defendants moved to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. Third, defendant Sorensen contended that the suit should be dismissed with respect to him for insufficiency of service of process. See Fed.R.Civ.P. 4(d). The district court granted the defendants’ motion to dismiss, in part, because of the Eleventh Amendment, but primarily for failure to state a claim upon which relief could be granted. The district court found the third ground without merit. This appeal follows. II. In cases involving the dismissal of a complaint, the complaint is to be construed in the light most favorable to the plaintiff and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The complaint should not be dismissed 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. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). a. Eleventh Amendment The plaintiff concedes that the defendants are state entities and that his request for compensatory and punitive damages against the defendants is barred by the Eleventh Amendment. He contends, however, that an award of injunctive or declaratory relief would not violate the Eleventh Amendment. The Eleventh Amendment, which grants sovereign immunity to states, under certain circumstances, 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. Despite its limited language, the Supreme Court in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), held that the Eleventh Amendment bars a federal court from entertaining a suit brought by a citizen against his own State. Furthermore, it is well-settled that a suit may be barred by the Eleventh Amendment even though a state official rather than the State" } ]

[ { "docid": "10504948", "title": "", "text": "claim on behalf of the debtor’s creditors since the claim is personal to the creditors rather than the corporate debtor. II. STANDARD OF REVIEW The standard for the defendants’ motion to dismiss for failure to state a claim upon which relief can be granted is governed by Federal Rule of Civil Procedure 12(b)(6) which is incorporated by reference in Federal Rule of Bankruptcy Procedure 7012. In evaluating a 12(b)(6) motion, the court must accept as true “all well-pleaded allegations in the complaint” and must draw all inferences in the plaintiffs favor. Blaw Knox Retirement Income Plan v. White Consolidated Industries, Inc., 998 F.2d 1185, 1188 (3d Cir.1993). If the plaintiff can establish grounds for relief under any set of facts, dismissal is unwarranted. Thus, a 12(b)(6) motion must be denied unless an “insuperable bar to relief is apparent on the face of the complaint.” Alternose Construction Co. v. Atlantic, Cape May and Parts of Burlington, Ocean and, Cumberland Counties Bldg. Trades Council, 493 F.Supp. 1181, 1183 (D.N.J.1980). The United States Supreme Court has stated that “a complaint should not be dismissed for failure to state a claim 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.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The court must neither assess the plaintiffs credibility nor evaluate the likelihood of success, despite the improbability of the plaintiffs ultimately prevailing. See Zucker v. Quasha, 891 F.Supp. 1010, 1013 (D.N.J.1995) (citing Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)) aff'd, 82 F.3d 408 (3d Cir.1996). See also Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A party seeking summary judgment bears the initial burden of demonstrating that the pleadings, depositions, answers, and affidavits, if any, create no genuine issues of material fact, and that the movant is therefore entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);" }, { "docid": "10388992", "title": "", "text": "are not “employers” or otherwise individually liable. Defendants do riot move to dismiss claims five, six, seven or eight, and we do not address these claims. II. STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint “for failure to state a claim upon which relief can be granted.” In considering a Rule 12(b)(6) motion, the court will accept the allegations of the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Dismissal of claims under Rule 12(b)(6) should be granted only if “it appears beyond doubt that the 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). Although the court must assume as true all facts alleged, “[i]t is not ... proper to assume that the [plaintiff] can prove any facts that it has not alleged.” Associated General Contractors of Calif., Inc., v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). Finally, when “[confronted with [a 12(b)(6) ] motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law.” Commonwealth of Pennsylvania v. PepsiCo, Inc., 836 F.2d 173, 179 (3d Cir.1988) (emphasis added). III. DISCUSSION A. Title VII & Individual Defendants The defendants move for the dismissal of all Title VII claims against the individual defendants on the grounds that Title VII will not support individual liability against employees. This Court has previously held that an employee may be individually hable under the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Title VII as an “employer.” Bishop v. Okidata, 864 F.Supp. 416 (D.N.J.1994) (Irenas, J.). Our conclusion was based on the statutory definition of an employer as “a person engaged in industry affecting commerce who has fifteen or more employees ... and any agent of such person.” 42 Ü.S.C. § 12111(5)(A); Id. at" }, { "docid": "16589530", "title": "", "text": "MEMORANDUM AND ORDER THEIS, District Judge. This matter is before the court on the defendant’s motion to dismiss, or in the alternative, for summary judgment (Doc. 7). Defendant argues that plaintiffs’ libel claim is barred by the statute of limitations and that plaintiffs have failed to state a claim under the Kansas Fair Credit Reporting Act, K.S.A. 50-701 et seq. The court has considered the briefs submitted by the parties and is prepared to rule. The standards governing consideration of a motion to dismiss for failure to state a claim upon which relief can be granted are clearly established. Motions to dismiss are disfavored: a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the 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, 101-02, 2 L.Ed.2d 80 (1957). In considering a motion to dismiss, the factual allegations of a complaint must be taken as true and all reasonable inferences must be indulged in favor of the plaintiff. Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976). Pleadings are to be liberally construed. Gas-a-Car, Inc. v. American Petrofina, Inc., 484 F.2d 1102, 1107 (1973). The question is not whether a plaintiff will ultimately prevail, but whether he is entitled to offer evidence in support of his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). If matters outside the pleading are presented to and not excluded by the court, a motion to dismiss for failure to state a claim shall be treated as a motion for summary judgment and the parties shall be given the opportunity to present all material pertinent to such a motion. Fed. R.Civ.P. 12(b). The procedural posture of this case requires that the court deviate from the usual practice of converting a motion to dismiss into a motion for summary judgment. Defendant filed with its motion for summary judgment the affidavit of J. Erica Sack. Doc. 11. On the same date" }, { "docid": "5763435", "title": "", "text": "Pursuant to Federal Rule 12(b)(6) Defendants have moved for an order dismissing plaintiffs claim pursuant to Fed. R.Civ.P. 12(b)(6). In deciding defendants’ motion, this Court must apply “the familiar standard for review of a Rule 12(b)(6) motion, which requires a court to construe any well-pleaded factual allegations in the complaint in favor of the plaintiff and dismiss the complaint only if ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Gagliaridi v. Village of Pawling, 18 F.3d 188, 191 (2d Cir.1994) (quoting Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957))). “The court’s function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Festa v. Local 3 International Brotherhood of Electrical Workers, 905 F.2d 35, 37 (2d Cir.1990). Thus, a motion to dismiss must be denied “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.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02. 2 L.Ed.2d 80 (1957)). “When determining the sufficiency of plaintiffs’ claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992)). II. Defendants’ Motion to Dismiss the Thirteenth Cause" }, { "docid": "10442950", "title": "", "text": "that plaintiffs lack standing to assert this claim and that in any event Section 8 does not mandate the federal government’s compliance with § 5937. For the reasons expressed below, defendants’ motion is denied. I DISMISSAL STANDARDS UNDER FED.R.CIV.P. 12(b)(6) On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972). The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail Clerks International Ass’n v. Schermerhorn, 373 U.S. 746, 753 n. 6, 83 S.Ct. 1461, 1465 n. 6, 10 L.Ed.2d 678 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. Id. See also Wheeldin v. Wheeler, 373 U.S. 647, 648, 83 S.Ct. 1441, 1443, 10 L.Ed.2d 605 (1963) (inferring fact from allegations of complaint). In general, the complaint is construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). So construed, the court may not dismiss the complaint for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 5.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). In spite of the deference the court is bound to pay to the plaintiffs allegations, however, it is not proper for the court to assume that “the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the ... laws in ways that have not been alleged.” Associated General Contractors v. California State Council, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). II STANDING A motion addressed to standing questions “whether the litigant is entitled to have the court decide" }, { "docid": "8933295", "title": "", "text": "Furthermore, he was ordered to pay restitution in the amount of $68,720.26. Duane Lominac was sentenced to forty-one months on each offense, to run concurrently, followed by three years of supervised release. Duane Lominac was also ordered to pay restitution in the amount of $68,720.26. American Express was a victim of the Lominacs’ criminal activity, and the party to which restitution was owed under the criminal judgment. In August of 1994, American Express filed a complaint against the Defendants seeking a civil judgment in the amount of the restitution order. The Defendants responded with, among other things, the instant motion to dismiss. II. DISCUSSION: The Defendants have submitted a document entitled “Motion for Dismissal.” The Court construes this submission as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). Under the provisions of 12(b), the only possible ground for dismissal of this action is for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the complaint is construed in the light most favorable to the plaintiff, American Express, and its allegations are taken as true. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of their claim which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Bruce v. Riddle, 631 F.2d 272, 273-74 (4th Cir.1980). A court should not dismiss a complaint even if it appears on the face of the pleadings that the chance of recovery is very remote. Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686. In the instant case, a motion to dismiss is inappropriate: Plaintiffs chance of recovering a judgment, far from being “very remote,” instead seems quite likely. This forecast is premised on the following provisions of the United States Code: (h) An order of restitution may be enforced—" }, { "docid": "10234920", "title": "", "text": "held a hearing on all open motions, and ordered that a transcript of the ex parte communication between Frost and Zachair’s counsel be submitted to the Court for in camera review, and it has been lodged with the Clerk under seal solely for examination by an appellate court in the event there is an appeal of my Order in this case. II I must view the defendants’ motions to dismiss with a forgiving eye, mindful that such motions are “granted sparingly and with caution in order to make certain that plaintiff is not improperly denied a right to have his claim adjudicated on the merits.” 5A WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE, CIVIL 2D § 1349 at 192-93 (1990); see Conley v. Gibson, 355 U.S. 41, 45—46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Thus, for purposes of ruling on the motions, I must accept as true the plaintiffs well-plead factual allegations and must construe those allegations in the light most favorable to the plaintiff. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206-07, 45 L.Ed.2d 343 (1975); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). However, “[w]hen confronted with a motion to dismiss a Sherman Act § 1 complaint,” the district court must “determine whether ‘allegations covering all the elements that comprise the theory for relief have been stated as required.” Estate Const. Co. v. Miller & Smith Holding Co., Inc., 14 F.3d 213, 220 (4th Cir.1994) (quoting United States v. Employing Plasterers Ass’n, 347 U.S. 186, 189, 74 S.Ct. 452, 454, 98 L.Ed. 618 (1954)). While a district court should assume that plaintiffs “can prove the facts that they allege in their complaint,” Estate Const. Co., 14 F.3d at 221, the court will not “assume that plaintiffs can prove facts that they have not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged.” Associated Gen. Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). (i) Applying these precepts, I" }, { "docid": "10442951", "title": "", "text": "U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). So construed, the court may not dismiss the complaint for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 5.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). In spite of the deference the court is bound to pay to the plaintiffs allegations, however, it is not proper for the court to assume that “the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the ... laws in ways that have not been alleged.” Associated General Contractors v. California State Council, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). II STANDING A motion addressed to standing questions “whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). It raises a legal question addressed to the allegations of the complaint, see Public Agencies Opposed to Social Security Entrapment v. Heckler (“POSSE”), 613 F.Supp. 558, 566 (E.D.Cal.1985), rev’d on other grounds, 477 U.S. 41, 106 S.Ct. 2390, 91 L.Ed.2d 35 (1986), and not the merits of the case. POSSE, 613 F.Supp. at 566. For this reason, in ruling on a motion to dismiss for want of standing the court accepts the allegations of the complaint as true and draws all inferences in favor of the plaintiff. MWAA v. CAAN, 501 U.S. -, -, 111 S.Ct. 2298, 2305-06, 115 L.Ed.2d 236, 251 (1991) (quoting Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206). To establish standing to sue under the APA, 5 U.S.C. § 702, plaintiffs must allege that they have suffered an injury in fact and must demonstrate that this injury falls within the “zone of interests” sought" }, { "docid": "1471696", "title": "", "text": "either by affidavit or admission, its task is inevitably a limited one. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims. Id. In considering a motion to dismiss under Rule 12(b)(6), the District Court should construe the allegations in the complaint favorably to the pleader and accept as true all well-pleaded facts in the complaint. LaPorte Constr. Co. v. Bay shore Nat’l Bank, 805 F.2d 1254, 1255 (5th Cir.1986); Windor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984). Dismissal of a claim is improper “unless it appears beyond a doubt that the 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); Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980); Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1984). Therefore, in challenging the sufficiency of the complaint under Rule 12(b)(6), the defendants bear the burden of proving that under no interpretation of the facts set forth in the complaint can the plaintiffs succeed. Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-102. B. The Applicable Law It is axiomatic that the same variable is dispositive of both issues presented. That variable is preemption. Should the plaintiff establish that the Airline Deregulation Act (“ADA”) is not applicable not only would that determination necessitate a remand, but it would also demonstrate the meritlessness of British Airways’ motion to dismiss. Conversely, if the defendants establish that plaintiffs claims are preempted, then they have also established this Court’s jurisdiction over the matter. At first blush it seems that the issues presented are fairly straightforward, but, plaintiff has succeeded through zealous advocacy of his" }, { "docid": "12888033", "title": "", "text": "offer three arguments for dis missal. First, they argue that the Amended Complaint, or at least part of it, should be dismissed under the Noerr-Pennington Doctrine. Second, they argue that Intel-lective lacks “antitrust standing” because the Amended Complaint fails to allege either (1) an adequate relevant product market or (2) “antitrust injury.” Third, they argue that Intellective has failed to plead facts adequate to satisfy certain elements of the violations claimed. The motions to dismiss defendants PwC and Sagamore from the case are granted. Intellective has not alleged anti-competitive conduct on the part of either of these entities. The motion of the Insurance Company Defendants is denied. At this early stage of the proceedings, Intellective has satisfied the pleading requirements to make out an antitrust action against these entities. DISCUSSION On a motion to dismiss for failure to state a claim, I must accept the complaint’s allegations as true and read them in the light most favorable to the plaintiff. Todd v. Exxon Corp. et al., 275 F.3d 191, 197 (2d Cir.2001). A complaint should not be dismissed for failure to state a claim “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.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). “The issue is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In antitrust cases, as in all federal cases, only “a short plain statement of a claim for relief which gives notice to the opposing party” is required of the complaint. George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 554 (2d Cir.1977). However, it is improper to assume that “the defendants have violated the antitrust laws in ways that have not been alleged.” Associated Gen. Contractors of California, Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74" }, { "docid": "23320916", "title": "", "text": "Appellate Division. At this point, Schonberger dismissed defendants and hired new counsel. Defendants in turn petitioned to have Justice Saxe determine and enforce a statutory lien that they had filed against plaintiff’s arbitration award. That action is still pending. Meanwhile, SDC and Dickinson refiled their motion to dismiss the arbitrator’s award, which was granted in November 1988. Plaintiff makes a number of malpractice allegations in his twenty-four count amended complaint. Defendants have moved for dismissal of, or summary judgment on, most of plaintiffs claims. Defendants have also moved for a stay of this action, should their instant motion to dismiss be denied, pending resolution of the state action on their statutory lien. Plaintiff has cross-moved for permission to amend his complaint to add two new causes of action. Finally, both parties have moved for the imposition of sanctions. DISCUSSION A) Standards 1) Motion to Dismiss Most of defendants’ motion is presented as a motion to dismiss pursuant to Rule 12(b). A motion to dismiss under Fed.R. Civ.P. 12 must be denied “unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Morales v. New York State Dep’t of Corrections, 842 F.2d 27, 30 (2d Cir.1988). The Court must accept plain tiffs allegations of facts as true, together with such reasonable inferences as may be drawn in its favor. See Murray v. Milford, 380 F.2d 468, 470 (2d Cir.1967). See also Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686. Fed.R.Civ.P. 8(a) requires only a “ ‘short and plain statement of the claim’ that will give the defendant fair notice of what plaintiffs claim is and the ground upon which it rests.” Conley, supra, 355 U.S. at 47, 78 S.Ct. at 103, quoting Fed.R.Civ.P. 8(a)(2), cited in Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59" }, { "docid": "6334546", "title": "", "text": "ORDER BELL, District Judge. On May 6, 1985, the plaintiff Van Dorn Company, Central States Can Co. Division (hereinafter Central States) filed the above-entitled action against Texas Can, Inc. (hereinafter Texas Can) and three of its officers. The plaintiff alleged a cause of action based upon Title IX, § 901(a) of the Organized Crime Control Act of 1970, commonly known as the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (hereinafter RICO). In addition, the complaint, as amended on July 14, 1985, asserted claims under Ohio law in which plaintiff contends defendants breach-' ed a contract between the parties, interfered with the plaintiffs business relations, breached a fiduciary duty, and misappropriated various trade secrets held by Central States. Presently before the court is the defendants’ motion to dismiss the amended complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, for want of subject matter jurisdiction, and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. The defendants also seek an award of their expenses incurred in defending this action, including attorneys fees, as a sanction under Rule 11 of the Federal Rules of Civil Procedure for the filing of a complaint which defendants perceive as being one unwarranted in either fact or law. When considering a motion to dismiss a claim pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, the court is constrained to accept as true the allegations in the complaint. Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 525, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). To dismiss the complaint against the defendants, the court must find as a matter of law that the plaintiff can prove no set of facts in support of its claim which would justify the relief sought. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Therefore, a summary of the facts as set forth in the amended complaint follows. The plaintiff is a corporation which manufacturers" }, { "docid": "11131921", "title": "", "text": "be denied “unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); see also Morales v. New York State Dep’t of Corrections, 842 F.2d 27, 30 (2d Cir.1988). In deciding a motion to dismiss, the Court must limit its analysis to the four corners of the complaint, see Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir.1991), and must accept the plaintiff’s allegations of fact as true, together with such reasonable inferences as may be drawn in his favor. Papasan v. Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 2943, 92 L.Ed.2d 209 (1986); Murray v. Milford, 380 F.2d 468, 470 (2d Cir.1967); Hitt v. Sullivan, 125 F.R.D. 86, 90 (S.D.N.Y.1989) (“all allegations in plaintiffs’ amended complaint must be accepted as true and liberally construed.”); see also Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686. Federal Rule of Civil Procedure 8(a) requires only a “ ‘short and plain statement of the claim’ that will give the defendant fair notice of what plaintiff’s claim is and the ground upon which it rests.” Conley, supra, 355 U.S. at 47, 78 S.Ct. at 103 (quoting Fed.R.Civ.P. 8(a)). Defendants assert, relying solely on Black’s Law Dictionary, that plaintiffs’ fraud claims are insufficient as a matter of law because “the essence of fraud is a false representation,” Memorandum of Law in Support of Motion to Dismiss RICO Causes of Action and Pendent State Claims or for Judgment on the Pleadings (“Defendants’ Memorandum”) at 3, and the allegations in the amended complaint “do not allege false representations by the individual defendants or by Mayes International, Ltd. Rather, they allege false representations by ‘Orbit.’ ” Defendants’ Memorandum at 4 (emphasis in original). However, it is well established that under the mail fraud and wire fraud statutes, 18 U.S.C. § 1341 and 18 U.S.C. § 1343, respectively, which constitute" }, { "docid": "19696081", "title": "", "text": "82 F.3d 63, 65 (3d Cir.1996); Pieckniek v. Pennsylvania, 36 F.3d 1250, 1255 (3d Cir.1994); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). Nonetheless, legal conclusions made in the guise of factual allegations are not given a presumption of truthfulness. See Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 846 (D.N.J.1992), aff'd, 37 F.3d 1485 (3d Cir.1994). Although a court must assume the truth of all facts alleged, it is improper to presume a plaintiff can prove any facts hot alleged in the Complaint. Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). A court may dismiss a complaint for failure to state a claim “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); see Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 113 S.Ct. 2891, 2916-17, 125 L.Ed.2d 612 (1993); In re Westinghouse Securities Litigation, 90 F.3d at 706 (dismissal only appropriate where “it appears certain the plaintiffs can prove no set of facts entitling them to relief’); Piecknick, 36 F.3d at 1255. A Federal court reviewing the sufficiency of a complaint has a limited role. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Estate of Bailey v. County of York, 768 F.2d 503, 506 (3d Cir.1985), overruled on other grounds, DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 197-98, 109 S.Ct. 998, 1004-05, 103 L.Ed.2d 249 (1989). As indicated, in the instant case, the Defendants seek to dismiss counts VI, XI and XII entirely and to dismiss counts I, III and V counts as against Doyle" }, { "docid": "13322513", "title": "", "text": "assignment to Ross Fogg violated the PMPA. Plaintiff also alleges violation of the Robinson-Patman Act, 15 U.S.C. § 13, and New Jersey tort law. See id. ¶ 35 (alleging tortious interference with plaintiff’s contractual rights). II. MOTION TO DISMISS A. Applicable Standard Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint “for failure to state a claim upon which relief can be granted.” In considering a Rule 12(b)(6) motion, a court will accept the allegations of the complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Dismissal of claims under Rule 12(b)(6) should be granted only if “it appears beyond doubt that the 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). Although the court must assume as true all facts alleged, “[i]t is not ... proper to assume that the [plaintiff] can prove any facts that it has not alleged.” Associated General Contractors of Calif. Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). Finally, when “[c]onfronted with [a 12(b)(6) ] motion, the court must review the allegations of fact contained in the complaint: for this purpose the court does not consider eonclusory recitations of law.” Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 179 (3d Cir.1988) (emphasis added). B. PMPA Claims The PMPA regulates the relationship between motor fuel distributors, principally oil refiners, and their franchisees, principally retail gas station operators. Prior to the passage of the PMPA, evidence suggested that “distributors had been using the threat of termination or nonrenewal to compel franchising policies ... [and] to gain an unfair advantage in contract disputes.” Slatky v. Amoco Oil Co., 830 F.2d 476, 478 (3d Cir.1987) (in banc). Accordingly, in passing the PMPA, Congress sought to protect “franchisees from arbitrary or discriminatory termination or nonrenewal,” and adopted minimum standards governing the termination or nonrenewal of a petroleum" }, { "docid": "17426760", "title": "", "text": "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 F.3d 1480, 1484 (11th Cir.1994). “Rule 12(b)(6) dismissals are particularly disfavored in fact-intensive antitrust cases.” Covad Communications Co. v. BellSouth Corp., 299 F.3d 1272, 1279 (11th Cir.2002). A plaintiff is “entitled to survive a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6) if there is any set of facts that, if proven at trial, would entitle [it] to recover.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 551 n. 8, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). A court may not assume, however, that a plaintiff can prove facts that it has not alleged or that a defendant has violated laws in ways that have not been alleged. Id. at 526, 103 S.Ct. 897; Beck v. Interstate Brands Corp., 953 F.2d 1275, 1276 (11th Cir.1992) (per curiam). Nor is the court bound to accept as true a legal conclusion couched as a factual allegation. See B.H. Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Although the federal rules embrace a liberal" }, { "docid": "5315414", "title": "", "text": "of the complaint. Defendants argue that it should be dismissed because (1) plaintiffs have not pled antitrust injury, (2) the complaint fails to plead facts sufficient to put the individual defendants on notice of the fraud and conspiracy claims against each of them, and (3) plaintiffs’ claims are limited by the four-year statute of limitations. For the reasons set forth below, the motion to dismiss is denied. DISCUSSION 1. Standard on a Motion to Dismiss Dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(6) is permitted “ ‘only where it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief.’ ” Scotto v. Almenas, 143 F.3d 105, 109-10 (2d Cir.1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); see also Still v. DeBuono, 101 F.3d 888, 891 (2d Cir.1996). A district court’s function on a motion to dismiss under Rule 12(b)(6) is to assess the legal feasibility of the challenged claims. Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.1998); Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir.1991). The issue “is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. In antitrust cases in particular, “ ‘dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly.’ ” George Haug Co. v. Rolls Royce Motor Cars Inc., 148 F.3d 136, 139 (2d Cir.1998) (quoting Hospital Building Co. v. Trustees of Rex Hosp., 425 U.S. 738, 746, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976)). Nonetheless, “ ‘[i]t is not ... proper to assume that the [plaintiff] can prove facts that it has not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged.’ ” Id. (quoting Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983)). An antitrust complaint must “ ‘adequately ... define the relevant product market," }, { "docid": "17968317", "title": "", "text": "Presently before the Court is Defendants’ motion to dismiss Plaintiffs’ Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b), and the Private Securities Litiga tion Reform Act of 1995, 15 U.S.C. § 78u-4(b) (“PSLRA” or “Reform Act”). For the reasons set forth below, the Court concludes that Plaintiffs’ Amended Complaint fails to meet the heightened pleading requirements of the PSLRA and therefore will be dismissed. I. Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint “for failure to state a claim upon which relief can be granted.” In considering a Rule 12(b)(6) motion, the court will accept as true all of the factual allegations contained in the complaint and any reasonable inferences that can be drawn therefrom. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996). Dismissal of claims under 12(b)(6) should be granted only if “it appears beyond doubt that the 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, 2 L.Ed.2d 80 (1957). Although the court must assume as true all facts alleged, “[i]t is not ... proper to assume that the [plaintiff] can prove any facts that is has not alleged.” Associated General Contractors of Calif, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). Finally, when “confronted with a [12(b)(6) ] motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law.” Commonwealth of Pennsylvania v. PepsiCo., Inc., 836 F.2d 173, 179 (3d Cir.1988) (emphasis added). Generally, in reviewing the legal sufficiency of a complaint, a court may not consider material beyond the pleadings without converting the motion to dismiss into a motion for summary judgment. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997). The Third Circuit, however, has recognized certain exceptions to this general rule relevant to this Court’s resolution of Defendants’ motion to dismiss. For instance, a “" }, { "docid": "9624862", "title": "", "text": "R.Civ.P. 12(b)(6) requires the court to review only the pleadings to determine whether the pleadings state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b). In considering a motion to dismiss under Rule 12(b)(6), the court must assume that all facts alleged in the plaintiff’s complaint are true, and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The issue is not whether a plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to offer evidence in support of the plaintiff’s claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1376 (8th Cir.1989). “A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief.” Conley, 355 U.S. at 45—46, 78 S.Ct. at 102. The Rule does not countenance dismissals based on a judge’s disbelief of a complaint’s factual allegations. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1832-33, 104 L.Ed.2d 338 (1989). Thus, it is only in the \"unusual case” where the complaint on its face reveals some insuperable bar to relief that a dismissal under Rule 12(b)(6) is warranted. Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir.1982). However, in this case, determination of the motion for summary judgment will effectively moot the motion to dismiss for failure to state a claim on the ground that the letter from the EEOC does not establish Kane's exhaustion of administrative remedies and further ground that Kane's federal claim is time-barred. These issues are also raised in the motion for summary judgment and the EEOC’s purported right-to-sue letter is a part of the summary judgment record, as Plaintiff's Exhibit 5 in Support of Resistance to Summary Judgment. If the court grants the IDHS’s motion for summary judgment as to the Title VII claim, it will have no need" }, { "docid": "2867613", "title": "", "text": "accepted as true. See Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081-82, 31 L.Ed.2d 263 (1972). The court is bound to give the plaintiff the benefit of every reasonable inference that can be drawn from the “well-pleaded” allegations of the complaint. See Retail Clerks Intern. Ass’n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 753, n. 6, 83 S.Ct. 1461, 1465, n. 6,10 L.Ed.2d 678 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See Id.; see also Wheeldin v. Wheeler, 373 U.S. 647, 648, 83 S.Ct. 1441, 1443, 10 L.Ed.2d 605 (1963) (inferring fact from allegations of complaint). In general, the complaint is construed favorably to the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). So construed, the court may not dismiss the complaint for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). In spite of the deference the court is bound to pay to the plaintiffs allegations, however, it is not proper for the court to assume that “the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the ... laws in ways that have not been alleged.” Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). III. INDEMNITY CLAIMS UNDER ERISA The issue before me is whether 29 U.S.C. § 1132(a)(3) permits suit for indemnification by an ERISA plan fiduciary against a co-fiduciary in an action brought by a beneficiary for the miscalculation and insufficient disbursement of benefits due under an employee welfare benefits plan. In arguing that there is no" } ]

[ { "docid": "16076259", "title": "", "text": "determining whether summary judgment was properly granted, we must “view the case from the same position as the district court” and apply the same standards. Nevada Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir.1993). We may affirm the district court grant of summary judgment on any basis supported in the record. Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1176 (9th Cir.2000). We review the district court’s factual findings for clear error. Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1140 (9th Cir.1998). An agency’s interpretation or application of a statute is a question of law reviewed de novo. Partridge v. Reich, 141 F.3d 920, 923 (9th Cir.1998). In reviewing an agency’s statutory construction, we must reject those constructions that are contrary to clear congressional intent or frustrate the policy that Congress sought to implement. Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also NRDC v. EPA, 966 F.2d 1292, 1297 (9th Cir.1992) (“On questions of statutory construction, courts must carry out the unambiguously expressed intent of Congress.”). Under the Administrative Procedures Act, we review the Secretary’s Initial Finding, in light of the administrative record, to determine if the Finding is “ ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ or if the [Finding] failed to meet statutory, procedural, or constitutional requirements.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see also 5 U.S.C. § 706(2)(A)-(D). This inquiry, while narrow, must be searching and careful. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). An agency’s action may be arbitrary and capricious if “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to" } ]

[ { "docid": "10689394", "title": "", "text": "the interest of clarity and consistency, we now reach this question. Courts are to review agency actions under DSHEA using the “traditional tools of statutory construction.” Pharmanex v. Shalala, 221 F.3d 1151, 1154 (10th Cir.2000). The de novo standard, under section 342(f), applies to enforcement actions by the United States against manufacturers of dietary supplements. Such enforcement actions may result in imprisonment or monetary fines. 21 U.S.C. § 333; see United States v. Park, 421 U.S. 658, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975). Reading the statute as a whole, it is clear that the de novo standard applies when courts “decide” matters rather than when they “review” administrative decisions. As such, it is appropriate to limit the de novo standard of review, which affords the FDA no deference, to enforcement proceedings. Challenges by private parties to FDA rules promulgated under DSHEA are reviewed pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and “the normal rules for judicial deference regarding agency action apply.” NVE, Inc. v. HHS, 436 F.3d 182, 196 (3rd Cir.2006). “Had Congress intended to supplant the well-established procedures for APA challenges, it would have been clearer about its objective.” Id. at 194. Chevron Analysis A court reviewing the FDA’s construction of the FDCA must determine: whether Congress has directly spoken to precise question at issue; and if not, then whether agency’s construction of statute is permissible one. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In reviewing the FDA’s interpretation of DSHEA under Chevron, we ask two questions: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress [Chevron step 1]. But if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute." }, { "docid": "3127046", "title": "", "text": "In September 1998, plaintiff requested expedited judicial review, pursuant to 42 U.S.C. § 1395oo(f)(l) and 42 C.F.R. § 405.1842, contending that the regulation eliminating the carry forward provision was invalid. On September 28, 1998, the PRRB granted plaintiffs request for expedited judicial review. Plaintiff then filed its complaint in this action. IV. Standard of Review The question currently before this Court is whether 42 C.F.R. § 413.13, eliminating the carry forward provision previously promulgated by the Secretary, is valid. Under the Medicare Act, 42 U.S.C. § 1395oo, judicial review of final agency decisions regarding Medicare reimbursement is governed by the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) and (E). See French Hosp. Med. Ctr. v. Shalala, 89 F.3d 1411, 1416 (9th Cir.1996). Under the Administrative Procedure Act, an agency’s final decision will only be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ... [or] unsupported by substantial evidence.” 5 U.S.C. § 706(2)(A). See also French Hosp., 89 F.3d at 1416. Furthermore, a regulation promulgated by an agency is to be given “controlling weight” unless it is “arbitrary, capricious, or manifestly contrary to controlling law.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), 467 U.S. at 844, 104 S.Ct. 2778. In Chevron, the Supreme Court set forth the following standard for reviewing an agency’s determination: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect" }, { "docid": "19745094", "title": "", "text": "the case here, the court is called upon to review an agency’s interpretation of a statute that the agency is responsible for administering, the standard of review is governed by a two-step test articulated in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Sierra Club v. Johnson, 436 F.3d 1269, 1274 (11th Cir.2006). “First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (footnotes omitted). Should the court determine that the statute is silent or ambiguous, the Chevron standard of review is further refined at step two. If the statute contains an express delegation of authority to the agency to fill in a gap left by the statute, then the agency’s gap-filling regulation must be upheld unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. 2778. If, on the other hand, the statute’s delegation to the agency is merely implicit, then the court “may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. This two-step standard of review, known as Chevron deference, governs the cpurt’s review of the Forest Service’s interpretation of the ARA. As it turns out, see infra Subsection III.A.2.b., there is ultimately no need to apply Chevron deference in this case, as the court’s consideration of the merits of the" }, { "docid": "21968140", "title": "", "text": "of law that we review de novo. See Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004); Vernazza v. SEC, 327 F.3d 851, 858 (9th Cir.2003), amended by 335 F.3d 1096 (9th Cir.2003). In reviewing an agency’s statutory construction, we must reject those constructions that are contrary to clear congressional intent or that frustrate the poli,cy that Congress sought to implement. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Natural Res. Def. Council, Inc. v. ERA, 966 F.2d 1292, 1297 (9th Cir.1992) (“On questions of statutory construction, courts must carry out the unambiguously expressed intent of Congress.”). In Chevron, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694, the Supreme Court set forth a two-part test for judicial review of administrative agency interpretations of federal law. See id. at 842-43, 104 S.Ct. 2778. First, “[i]f the intent of Congress is clear, that is the end of the matter.” Id. “Congressional intent may be determined by ‘traditional tools of statutory construction,’ and if a court using these tools ascertains that Congress had a clear intent on the question at issue, that intent must be given effect as law.” Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir.2003) (en banc) (citations omitted), amended by 360 F.3d 1374 (9th Cir.2004). Second, if the statute is silent or ambiguous with respect to the issue at hand, then the reviewing court must defer to the agency so long as “the agency’s answer is based on a permissible construction of the statute.” Wilderness Soc’y, 353 F.3d at 1059 (citing Chevron, 467 U.S. at 843, 104 S.Ct. 2778). “In such a case an agency’s interpretation of a statute will be permissible, unless ‘arbitrary, capricious, or manifestly contrary to the statute.’ ” Id. (quoting Chevron, 467 U.S. at 844, 104 S.Ct. 2778). A. Shortage Area Medical Practice that Occurred Before the Approval of the Immigrant Visa Petition and National Interest Waiver The Immigrant Doctors’ first regulatory challenge concerns a doctor’s medical practice in a designated shortage" }, { "docid": "19185383", "title": "", "text": "Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. The APA provides that a reviewing court shall set aside agency actions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). While the “scope of review under the ‘arbitrary and capricious’ standard is narrow,” the agency must “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962)). Moreover, if the agency “does not reasonably accommodate the policies of a statute or reaches a decision that is ‘not one that Congress would have sanctioned,’ ... a reviewing court must intervene to enforce the policy decisions made by Congress.” Natural Resources Defense Council v. Herrington, 768 F.2d 1355, 1383 (D.C.Cir. 1985) (citations omitted). Judicial review of EPA’s interpretation of the Bevill Amendment is governed by the framework set out in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We must first consider whether Congress “has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. at 2781. As tfie Chevron Court declared: If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. Id. at 842-43, 104 S.Ct. at 2781. If Congress is silent on the issue, however, or its intent is ambiguous, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2781. See also I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). In ascertaining the intent of Congress, the reviewing court should look first to the language and structure of the statute itself. “If" }, { "docid": "2418034", "title": "", "text": "(9th Cir.2004)) (internal quotation marks omitted). Review under this standard “is narrow, and [we do] not substitute [our] judgment for that of the agency.” Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir.2009) (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc)) (alterations in original) (internal quotation marks omitted). Rather, reversal is only proper if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. (quoting Lands Council, 537 F.3d at 987) (internal quotation marks omitted). Additionally, under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we engage in a three-step inquiry when reviewing an agency’s interpretation of a statute that it is entrusted to administer. First, we must decide whether Congress intended “the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law.” United States v. Mead Corp., 533 U.S. 218, 229, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Next, we ask “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. Finally, if the statute is silent or ambiguous as to the issue at hand, we then defer to the agency’s reading so long as its interpretation is a reasonable one. Id. at 843, 104 S.Ct. 2778. DISCUSSION I. The Administrative Procedures Act Plaintiffs argue that BSEE’s approval of the OSRPs' was arbitrary and capricious in violation of the Administrative Procedures Act. See 5 U.S.C. § 706(2)(A). According to Plaintiffs, Shell assumed that, in the event of a" }, { "docid": "19602609", "title": "", "text": "946, 956 (9th Cir. 2005), rev'd on other grounds, Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). 2. Standard of Review Our substantive review of the Rule has two steps. \"First, we examine the regulation against the statute that contains the [agency's] charge.\" Riverkeeper II, 475 F.3d at 95 (quotation marks omitted). If Congress \"has directly spoken to the precise question at issue\" and has unambiguously expressed its intent, we must give effect to that intent. Chevron U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If the statute is silent or ambiguous, we ask only \"whether the agency's answer is based on a permissible construction of the statute,\" id. at 843, 104 S.Ct. 2778, that is, we ask whether the agency's action is \"arbitrary, capricious, or manifestly contrary to the statute,\" Riverkeeper I, 358 F.3d at 184 (quotation marks omitted). \"Second, if the agency has followed Congress's unambiguously expressed intent or permissibly construed an ambiguous statute, we measure the regulation against the record developed during the rulemaking,\" Riverkeeper II, 475 F.3d at 95 (quotation marks omitted), holding it unlawful only if it is \"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,\" id. (quoting 5 U.S.C. § 706(2)(A)). Our review is \"narrow, limited to examining the administrative record to determine whether the agency decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.\" Riverkeeper I, 358 F.3d at 184 (quotation marks omitted). Because \"we lack the [agencies'] expertise when it comes to scientific or technical matters,\" id., we look only to see whether the agency \"examined the relevant data and articulated a satisfactory explanation for its action,\" and whether there is a \"rational connection between the facts found and the choice made,\" Nat. Res. Def. Council v. FAA, 564 F.3d 549, 555 (2d Cir. 2009) (quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29," }, { "docid": "19745093", "title": "", "text": "relevant factors, but not to scrutinize the wisdom of the decision itself. 33 Wright & Koch, Federal Practice & Procedure § 8335, at 175 (2006). Agency action should be set aside as arbitrary and capricious if the agency “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43, 103 S.Ct. 2856; see also Army Corps, 295 F.3d at 1216. In other words, judicial review of agency action must by “searching and careful,” but “the ultimate standard of review is a narrow one.” Marsh, 490 U.S. at 378, 109 S.Ct. 1851; see also Skinner, 903 F.2d at 1538. The arbitrary and capricious standard will govern this court’s review of Wildlaw’s allegations that the Forest Service violated NEPA. B. Chevron Deference When, as is the case here, the court is called upon to review an agency’s interpretation of a statute that the agency is responsible for administering, the standard of review is governed by a two-step test articulated in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Sierra Club v. Johnson, 436 F.3d 1269, 1274 (11th Cir.2006). “First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is" }, { "docid": "20711893", "title": "", "text": "“the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Id. at 90 (quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir.1985)). “[W]hen an agency action is challenged” solely with “arguments about the legal conclusion to be drawn about the agency action,” then the “case on review is a question of law, and only a question of law.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C.Cir.1993). Thus, the entire case can be resolved on the administrative record under a motion for summary judgment. Id. In that instance, a “district court[ ] reviewing agency action under the APA’s arbitrary and capricious standard do[es] not resolve factual issues, but operate[s] instead as [an] appellate court[ ] resolving legal questions.” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C.Cir.1996). C. Chevron Deference The Supreme Court’s opinion in Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), outlines a two-step process courts must follow in determining whether to defer to an agency’s interpretation of a statute. “Under Chevron Step One, the court examines the statute de novo,” applying “the traditional tools of statutory construction in order to discern whether Congress has spoken directly to the question at issue.” Eagle Broad. Group, Ltd. v. FCC, 563 F.3d 543, 550, 552 (D.C.Cir.2009) (citing Chevron, 467 U.S. at 842413, 104 S.Ct. 2778). “If this ‘search for the plain meaning of the statute ... yields a clear result, then Congress has expressed its intention as to the question, and deference is not appropriate.’ ” Eagle Broad., 563 F.3d at 552 (quoting Bell Atlantic Tel. Cos. v. FCC, 131 F.3d 1044, 1047 (D.C.Cir.1997)). Under that circumstance, “the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. Because it is a federal agency, this applies to the PTO: “[T]he PTO contends that its" }, { "docid": "10689395", "title": "", "text": "Cir.2006). “Had Congress intended to supplant the well-established procedures for APA challenges, it would have been clearer about its objective.” Id. at 194. Chevron Analysis A court reviewing the FDA’s construction of the FDCA must determine: whether Congress has directly spoken to precise question at issue; and if not, then whether agency’s construction of statute is permissible one. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In reviewing the FDA’s interpretation of DSHEA under Chevron, we ask two questions: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress [Chevron step 1]. But if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. If Congress has explicitly or implicitly delegated authority to an agency, legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute [Chevron step 2]. Seneca-Cayuga, Tribe of Oklahoma v. National Indian Gaming Com’n, 327 F.3d 1019, 1037 (10th Cir.2003) (citations omitted). The APA reflects the principles of Chevron and “provides that agency action must be set aside if the action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ or if the action failed to meet statutory, procedural, or constitutional requirements.” Valley Cmty. Pres. Comm’n v. Mineta, 373 F.3d 1078, 1084 (10th Cir.2004) (internal quotation omitted) (citing 5 U.S.C. § 706). “When we review an agency’s decision under the arbitrary, capricious or abuse of discretion standard [of the APA], our review is narrow and deferential; we must uphold the agency’s action if it has articulated a rational basis for the decision and has considered relevant factors.” Slingluff v. Occupational Safety & Health Review Comm’n, 425 F.3d 861, 866 (10th Cir.2005) (citing Mountain Side" }, { "docid": "631400", "title": "", "text": "regulations and that its regulations, as published, inadequately control storm water contaminants. NRDC’s allegations ... satisfy the broad standing requirement applicable here.”). Intervenors argue, however, that they were not parties when this action was filed and that this court cannot redress Petitioners’ injury without them. Their real contention appears to be that they are indispensable parties under Federal Rule of Civil Procedure 19. We need not consider that contention, however, because in fact Intervenors have been permitted to intervene in this action and to present their position fully. In the circumstances, In-tervenors have suffered no injury. DISCUSSION A. Standard of Review The Administrative Procedures Act (APA), 5 U.S.C. §§ 701-06, provides our standard of review for the EPA’s decision to issue a permit. See American Mining Congress v. EPA, 965 F.2d 759, 763 (9th Cir.1992). Under the APA, we generally review such a decision to determine whether it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). On questions of statutory interpretation, we follow the approach from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See NRDC II, 966 F.2d at 1297 (so holding). In Chevron, 467 U.S. at 842-44, 104 S.Ct. 2778, the Supreme Court devised a two-step process for reviewing an administrative agency’s interpretation of a statute that it administers. See also Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1452 (9th Cir.1996) (“The Supreme Court has established a two-step process for reviewing an agency’s construction of a statute it administers.”). Under the first step, we employ “traditional tools of statutory construction” to determine whether Congress has expressed its intent unambiguously on the question before the court. Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778 (footnote omitted). If, instead, Congress has left a gap for the" }, { "docid": "7869131", "title": "", "text": "categorical temporal limitation on eligibility for RRC placement contravene the plain meaning of the statute. Only the First Circuit has upheld the BOP regulations as an appropriate exercise of the BOP’s discretion. II. STANDARD OF REVIEW We review questions of statutory interpretation de novo. United States v. Horvath, 492 F.3d 1075, 1077 (9th Cir.2007). “Because this case involves an administrative agency’s construction of a statute that it administers, our analysis is governed by Chevron U.S.A Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 ...” Mujahid v. Daniels, 413 F.3d 991, 997 (9th Cir.2005) (citations omitted). Under the Chevron framework we must “first determine[ ] if Congress has directly spoken to the precise question at issue, in such a way that the intent of Congress is clear.” Id. (citation and internal quotation marks omitted). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (footnote reference omitted). III. DISCUSSION A. The BOP Regulations Violate the Clear and Unambiguous Congressional Intent Expressed in § 3621(b). Employing the Chevron analysis, we must first determine whether Congress’s intention regarding the BOP’s discretion in determining prisoner placements and transfers is clear from the text of 18 U.S.C. § 3621(b). If the statute is clear, we then decide whether the BOP’s regulations violate that clearly expressed intent. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. Smith relies on 18 U.S.C. § 3624(c) to explain the interplay between the BOP regulations and § 3621(b). He argues that because § 3624(c) limits when an inmate may be placed in an RRC, “prisoners have no right to be considered for an RRC placement until they have finished 90% of their sentence. Seen from this point of view, the BOP’s decision in the regulations to impose exactly this limitation is not only a reasonable interpretation of the statute, but the only reasonable interpretation.” In essence, Smith contends that in light of §" }, { "docid": "13004403", "title": "", "text": "See 70 Fed.Reg. at 23063. It is not our job to determine whether the statute of limitations, as it now operates under § 1855(f)(1), is unwise, unfair, or unworkable. That job belongs to Congress. Our task is to interpret the statute. Applying our reading of its plain terms, the 2005 management measures’ publication triggered a 30-day period during which plaintiffs could challenge the 1989 regulation establishing the 35,000 natural spawner escapement floor. III. Merits A. Standard of Review We now turn to the merits of plaintiffs’ claims. We review the NMFS’s construction of the Magnuson Act under the familiar test set forth in Chevron, U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See NRDC, Inc. v. Nat’l Marine Fisheries Serv., 421 F.3d 872, 878 (9th Cir.2005). We first consider “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. However, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. So long as the agency’s construction is reasonably consistent with the statute, we defer to it. Id.; see also Pronsolino v. Nastri, 291 F.3d 1123, 1131 (9th Cir.2002). This test is satisfied if the agency’s interpretation “reflects a plausible construction of the statute’s plain language and does not otherwise conflict with Congress’ expressed intent.” Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). The Magnuson Act adopts the APA’s standard for judicial review of agency action set forth in 5 U.S.C. § 706(2)(A). 16 U.S.C. § 1855(f)(1). We set aside an agency’s regulations if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.j” 5 U.S.C. § 706(2)(A). “[Tjhe agency must examine the relevant" }, { "docid": "197303", "title": "", "text": "967 (2004). The Supreme Court has explained that “[r]eview under the arbitrary and capricious standard is deferential.” Nat’l Ass’n of Home Builders, 127 S.Ct. at 2529. “Nevertheless, merely because our review must be deferential does not mean that [it] must also be inconsequential.” Moon v. Unum Provident Corp., 405 F.3d 373, 379 (6th Cir.2005). “The arbitrary-and-capricious standard ... does not require us merely to rubber stamp the [agency’s] decision.” Jones v. Metropolitan Life Ins. Co., 385 F.3d 654, 661 (6th Cir.2004). Indeed, “[deferential review is not no review, and deference need not be abject.” McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir.2003). B. Deference to Agency Interpretation of Statutes and Regulations In reviewing a federal agency’s interpretation of a statute that it administers, a reviewing court must first ask “whether Congress has directly spoken to the precise question at issue.” 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). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. However, if “Congress has not directly addressed the precise question at issue” and “the statute is silent or ambiguous with respect to the specific issue,” then “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. If the agency’s construction is a permissible one, even if it is not “the reading the court would have reached if the question initially had arisen in a judicial proceeding,” then the court must defer to the agency’s interpretation. Id. at 843 n. 11, 104 S.Ct. 2778. “In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. at 843, 104 S.Ct. 2778. When interpreting an agency regulation, a court should also defer to the agency’s interpretation of the regulation" }, { "docid": "23184784", "title": "", "text": "not above falsehood.” The IJ thus considered the legal insufficiency of Scheerer’s claim and an adverse credibility determination to be coextensive with a finding of frivolousness without examining what specific, material aspects of Scheerer’s application were knowingly false. These findings were insufficient to support a finding of frivolousness. The IJ, therefore, erred in concluding Scheerer’s application for asylum was frivolous and we accordingly vacate that part of the BIA’s November 8, 2004, decision affirming that finding. C. Validity of 8 C.F.R. § 1215.1(c)(8) Finally, Scheerer contends the regulatory bar prohibiting him from applying for an adjustment of status, 8 C.F.R. § 1245.1(c)(8), is invalid because it conflicts with congressional intent as expressed in the governing statute, 8 U.S.C. § 1255(a). For the reasons set forth below, we agree. We review questions of statutory interpretation and other issues of law de novo. See United States v. Trainor, 376 F.3d 1325, 1330 (11th Cir.2004). When reviewing an agency’s interpretation of a statute it administers, however, we apply the two-step test articulated in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). See also Lewis v. Barnhart, 285 F.3d 1329, 1333 (11th Cir.2002). First, we must determine “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. at 2781. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. at 2781. If Congress has not directly addressed the matter, or if the statute is ambiguous with respect to the matter, we move to Chevron’s second step to decide “whether the agency’s [regulation] is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2782. Where Congress has not merely failed to address a precise question, but has given an “express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” the agency’s “legislative regulations are given" }, { "docid": "21968139", "title": "", "text": "on August 9, 2004. Dr. Kasthuri disputes the contention and submits evidence that suggests that he responded to the request. B. Proceedings Below The Immigrant Doctors brought this action for declaratory and injunctive relief on December 4, 2002 in the United States District Court for the Central District of California. Specifically, the Immigrant Doctors sought: (1) a declaration that the five parts of the Secretary’s implementing regulations discussed in Part II. were inconsistent with, and ultra vires to, the Nursing Relief Act; and (2) a permanent injunction enjoining the Secretary from enforcing those portions of the regulations against them. On December 1, 2003, the Immigrant Doctors moved for summary judgment. On March 26, 2004, the district court found that the Immigrant Doctors were not enti- tied to summary judgment, and dismissed the action, concluding that “the portions of the Rule objected to by plaintiffs do not impermissibly contradict the INA or the Nursing Relief Act.” The Immigrant Doctors filed this timely appeal. IY. ANALYSIS An agency’s interpretation or application of a statute is a question of law that we review de novo. See Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004); Vernazza v. SEC, 327 F.3d 851, 858 (9th Cir.2003), amended by 335 F.3d 1096 (9th Cir.2003). In reviewing an agency’s statutory construction, we must reject those constructions that are contrary to clear congressional intent or that frustrate the poli,cy that Congress sought to implement. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Natural Res. Def. Council, Inc. v. ERA, 966 F.2d 1292, 1297 (9th Cir.1992) (“On questions of statutory construction, courts must carry out the unambiguously expressed intent of Congress.”). In Chevron, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694, the Supreme Court set forth a two-part test for judicial review of administrative agency interpretations of federal law. See id. at 842-43, 104 S.Ct. 2778. First, “[i]f the intent of Congress is clear, that is the end of the matter.” Id. “Congressional intent may be determined by ‘traditional tools of" }, { "docid": "7539754", "title": "", "text": "of Congress as “unambiguously expressed” in section 13 of the TREAD Act, see Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and whether the Final Rule is “arbitrary and capricious” under the APA, see Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43-44, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). To the extent that we review the scope of the agency’s authority under the TREAD Act, our inquiry is governed by Chevron: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. 467 U.S. at 842-43, 104 S.Ct. 2778 (footnotes omitted); accord New York Pub. Interest Research Group v. Whitman, 321 F.3d 316, 324 (2d Cir.2003). To the extent that we review the reasonableness of the agency’s actions under the APA, our inquiry is governed by State Farm: The scope of review under the arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there" }, { "docid": "3127047", "title": "", "text": "an agency is to be given “controlling weight” unless it is “arbitrary, capricious, or manifestly contrary to controlling law.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), 467 U.S. at 844, 104 S.Ct. 2778. In Chevron, the Supreme Court set forth the following standard for reviewing an agency’s determination: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Id. at 842-43, 104 S.Ct. 2778. See also French Hosp., 89 F.3d at 1416. The Court’s review of the Secretary’s decision is limited to the documentation provided in the rulemaking record. See French Hosp., 89 F.3d at 1416; Vista Hill Foundation, Inc. v. Heckler, 767 F.2d 556, 559 (9th Cir.1985). V. Analysis A. Has Congress Directly Spoken to the Precise Question at Issue? Plaintiff contends that Congress stated its requirement that the Secretary implement a carry foiward exception to the LCC through its language in the Committee Reports. However, the principles of statutory construction make it clear that the first part of the Chevron test may only be answered by reference to the language of the statute itself. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778; Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 834 (9th Cir.1996) (“[0]ur approach to statutory interpretation is to look to legislative history only where" }, { "docid": "3005910", "title": "", "text": "the standard for summary judgment is provided by 5 U.S.C. § 706(2), the Administrative Procedure Act (“APA”). Environment Now! v. Espy, 877 F.Supp. 1397, 1421 (E.D.Cal.1994). “The question is not whether there is a genuine issue of material fact, but rather whether the agency action was arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the records taken as a whole.” Id. (citing Good Samaritan Hospital, Corvallis v. Mathews, 609 F.2d 949, 951 (9th Cir.1979)). The precise nature of judicial review of an agency decision is whether the issue is one of fact or law. Id. An agency’s factual findings are entitled to “substantial deference.” Id., (citing 5 U.S.C. §§ 706(2)(A) & (E)). However, since courts are the final authorities regarding statutory interpretation, “legal issues, including questions of statutory construction, are reviewed de novo.” Id. (citing Blackfeet Tribe v. U.S. Department of Labor, 808 F.2d 1355, 1357 (9th Cir.1987)). Nevertheless, in some circumstances, an agency’s interpretation of governing statutes and regulations is entitled to deference. Id. (citing Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 847-48, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984)). Under Chevron, a two-step analysis is employed when reviewing an agency’s statutory interpretation: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based upon a permissible construction of the statute. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694. The Endangered Species Act (“ESA”), 16 U.S.C. § 1531, et seq.," }, { "docid": "22087698", "title": "", "text": "BIA’s decision. II. Discussion A. Judicial Review of the BIA’s Decision Standard of Review Where, as here, the BIA reviews de novo the IJ’s decision, our review is limited to the decision of the BIA. Hernandez v. Ashcroft, 345 F.3d 824, 832 (9th Cir.2003). We review for abuse of discretion the BIA’s denial of a motion to remand. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005). However, we review de novo the BIA’s determination of questions of law, except to the extent that deference is owed to its interpretation of the governing statutes and regulations. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004), cert. denied, 543 U.S. 1052, 125 S.Ct. 887, 160 L.Ed.2d 774 (2005). Chevron Deference As previously noted, in denying Garcia-Quintero’s motion to remand, the BIA determined that the FUP beneficiary status does not render one “admitted in any status” for the purposes of cancellation of removal. Thus, the initial question presented is whether we should accord the BIA’s decision in this case the deferential review prescribed by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In Chevron, the Supreme Court established a two-pronged framework for judicial review of administrative agency interpretations of the statutes and regulá tions that it administers. 467 U.S. at 842-43, 104 S.Ct. 2778; Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir.2003) (en banc). If congressional intent is clear, both the court and the agency must “give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. If, however, Congress has not directly addressed the exact issue in question, a reviewing court must defer to the agency’s construction of the statute so long as it is reasonable. Id. In other words, unless an agency’s statutory interpretation is “arbitrary, capricious, or manifestly contrary to the statute,” id. at 844, 104 S.Ct. 2778, the agency is accorded Chevron deference, and the court must adopt the agency’s view. “Chevron deference, however, does not apply to all statutory interpretations" } ]

[ { "docid": "22036670", "title": "", "text": "memorandum of points and authorities in opposition to the motion. If such a memorandum is not filed within the prescribed time, the court may treat the motion as conceded. Rules of the United States District Court for the District of Columbia, LCvR 7.1(b) (emphasis added). It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded. FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997); Stephenson v. Cox, 223 F.Supp.2d 119, 121 (D.D.C.2002). The District of Columbia Circuit has stated that “the discretion to enforce ... [R]ule [7.1(b) ] lies wholly with the district court”, Bender, 127 F.3d at 67-68 (citing Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C.Cir.1997)), and noted that it “ha[s] yet to find that a district court’s enforcement of this rule constituted an abuse of discretion”, id. (citations omitted). Accordingly, because the plaintiff had the opportunity to respond to all of the challenges to the claims in her complaint, the Court will construe her failure to refute the defendants’ assertion that she is unable to establish a prima facie case of disparate treatment with respect to the purported abusive work environment she was subjected to, including her allegations that the support staff member would not cooperate with tasks that were delegated to her, her receipt of sexually-oriented mail, the vandalism to her office, and work relating to Native American issues not being even distributed to her former co-workers, as conceded. (1) Can the Plaintiff Establish a Pri-ma Facie Case of Discrimination Regarding Her Remaining Claims? Turning to the plaintiffs remaining claims that she was the subject of disparate treatment during the course of her employment, the Court finds that the defendants are also entitled to summary judgment on these claims. As already stated above, to establish a prima facie case of disparate treatment, a plaintiff must establish “that ‘(1) she is a member of a protected class; (2) she suffered an adverse employment" } ]

[ { "docid": "11541316", "title": "", "text": "turn citing the predecessor to Local Rule 7(b))). Such a concession “acts as waiver,” such that a “party cannot raise [a] conceded argument on appeal.” Getter v. Randi, 40 F.3d 1300, 1304 (D.C.Cir.1994) (citing predecessor to Local Rule 7(b) and Weil v. Seltzer, 873 F.2d 1453, 1459 (D.C.Cir.1989)). We review a district court’s finding of waiver under Local Rule 7(b) for abuse of discretion—though “we have yet to find that a district court’s enforcement of this rule constituted [such] an abuse.” FDIC v. Bender, 127 F.3d at 67; see also Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 577 (D.C.Cir.1997) (“Where the district court relies on the absence of a response as a basis for treating [a] motion as conceded, we honor its enforcement of the rule.” (citing predecessor to Local Rule 7(b))). The district court held that the plaintiff waived Rule 26(e) because he did not raise the argument “in his opposition to the defendant’s motion to strike.” Wannall, 292 F.R.D. at 34. The plaintiffs decision not to invoke Rule 26(e) was apparently part of his litigation strategy. He hoped to defeat Honeywell’s motion for reconsideration of its summary judgment motion by persuading the court that Boomer effected no change to Virginia law. Invoking Rule 26(e)—or, for that matter, Rule 56(d)—would have required admitting that Boomer did effect such a change, so the plaintiff declined to do so even in response to a motion to strike the new declaration as untimely. At oral argument on the various motions, plaintiffs counsel hewed resolutely to that strategy in the face of the district court’s apparent puzzlement: The Court: And why do you fight it [the proposition that Boomer changed Virginia law] so much? ... I don’t understand the litigation strategy. Explain that to me. Mr. D. Brown: You know, Judge, sometimes I have a question myself. The Court: I mean, emphatically, you’re fighting it, putting yourself into a very difficult box. Mr. D. Brown: A box. So I’m here trying to get out of the box. I’m a jack-in-the-box, Judge. So why do we say it? Well, we said" }, { "docid": "3957217", "title": "", "text": "the facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.CivP. 56(c)(4). In other words, Rule 56(c)(4) sets forth the requirements for an affidavit or declaration submitted in support of or opposition to a motion for summary judgment; it does not impart any “right” to submit such affidavits or declarations. The plaintiffs capacious reading of Rule 56(c)(4) would essentially have that provision nullify Rule 26(a)(2)(D)’s requirement that expert testimony be submitted “at the times and in the sequence that the court orders.” See Fed.R.Civ.P. 26(a)(2)(D). The plaintiff also argues for the first time in his Court-directed supplemental briefing that the Markowitz Declaration “was designed to respond to an issue not specifically raised by Honeywell’s initial motion for summary judgment and is timely under Fed. R.Civ.P. 26(e)(2) and 26(a)(3)(B).” See Pl.’s Supplemental Briefing at 2. As a result of the plaintiffs failure to raise this argument— or even to reference Rules 26 or 37—in his opposition to the defendant’s motion to strike, the plaintiff has waived this argument. See, e.g., In re Asemani, 455 F.3d 296, 300 (D.C.Cir.2006) (a litigant’s argument “[was] waived because it was made for the first time in [appellant’s] reply brief’); Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997))). Even if the plaintiff had not waived this argument, the argument would still fail on the merits. Rule 26(e) imposes a duty on a party to “supplement or correct its [26(a) ] disclosure or response ... if the party learns that in some material respect the disclosure or response is incomplete or incorrect.” Fed.R.Civ.P. 26(e)(1). This duty only applies “if the additional or corrective information has not otherwise been made known to the other parties during the discovery process" }, { "docid": "1287112", "title": "", "text": "prevailing parties under the IDEA, and their claims will not be dismissed. The remaining plaintiffs, S.A., J.G., A.L., and E.C., on the other hand, received only de minimis relief that was not merit-based and that was without a hearing-officer ordered change in the legal relationship between themselves and the District. Accordingly, the Court will grant defendants’ motion for partial dismissal as to the claims of S.A., J.G., A.L., and E.C. A separate order accompanies this memorandum opinion. . The Court will refer to each student and his or her parent/guardian as a plaintiff, using the initials of the student. The Court will also refer to each student’s age as it was during the underlying administrative hearing. . Because plaintiffs have attached documents from the administrative hearings to their complaint, the Court may consider those materials in ruling on the motion brought pursuant to Fed.R.Civ.P. 12(b)(6). See Howard v. Gutierrez, 474 F.Supp.2d 41, 47-48 (D.D.C.2007) (\"In determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice.\") (citing Stewart v. Nat'l Educ. Ass’n, 471 F.3d 169, 173 (D.C.Cir.2006)). . On August 14, 2007, plaintiffs filed a prae-cipe withdrawing one of two claims asserted on behalf of J.S. In their opposition, plaintiffs failed to address defendants’ arguments to dismiss J.S.’s remaining claim. Hence, the Court will treat defendants' arguments as conceded. See Buggs v. Powell, 293 F.Supp.2d 135, 141 (D.D.C.2003) (reiterating that “[i]t is understood in this Circuit that when a plaintiff files an opposition to a dis-positive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff has failed to address as conceded”) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997)). . Hereinafter, the Court will cite to the exhibits attached to plaintiffs’ complaint by their exhibit letter only." }, { "docid": "20028334", "title": "", "text": "argument why the Court should deny conditional certification as to this specific claim. Defendants were warned that “where a party fails to respond to arguments in opposition papers, the Court may treat those specific arguments as conceded.” [14] Order at 3; see also Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003), aff'd, 98 Fed.Appx. 8 (D.C.Cir.2004); Lewis v. District of Columbia, No. 10-5275, 2011 WL 321711, at *1 (D.C.Cir. Feb. 2, 2011) (per curiam). Furthermore, “[i]t is not enough to mention a possible argument in the most skeletal way, leaving the [C]ourt to do counsel’s work, create the ossature for the argument, and put flesh on its bones. * * * [A] litigant has the obligation to spell out its arguments squarely and distinctly, or else forever hold its peace.” Schneider v. Kissinger, 412 F.3d 190, 200 n. 1 (D.C.Cir.2005) (citation omitted), cert. denied, 547 U.S. 1069, 126 S.Ct. 1768, 164 L.Ed.2d 515 (2006). In the absence of a meaningful opposition from Defendants, the Court exercises its discretion to treat the matter as conceded. To the extent Defendants have arguments counseling against certification, they must present them at the second stage of the certification analysis though a motion for decertification. Accordingly, with respect to Plaintiffs’ uniform maintenance claim, the Court shall conditionally certify this case as a collective action and allow notice to be sent to all non-exempt, hourly employees working at all nine hospitals during any workweek from May 26, 2008 to the present. However, the Court shall divide the action into two subclasses, one covering employees at MedStar’s District of Columbia hospitals (GUH, NRH, and WHC) and a second covering employees at MedStar’s Maryland hospitals (FSMC, GSH, HH, MMC, SMH, and UMH) because Maryland employees are not similarly situated for purposes of applying the DC-MWA. IV. CONCLUSION AND ORDER Accordingly, it is, this 29th day of July, 2012, hereby ORDERED that Plaintiffs’ [25] Motion for Conditional Certification is GRANTED IN PART and DENIED IN PART. The motion is GRANTED insofar as Plaintiffs seek conditional certification of this case as a collective action" }, { "docid": "17435166", "title": "", "text": "537 F.Supp. 388, 399 (S.D.W.Va.1982) (“Although summary judgment cannot be rendered on the whole case, material facts relating to the amount of damages are not in dispute, and may therefore be deemed established for the duration of this litigation.”); see also Fed.R.Civ.P. 56(g), Advisory Committee Notes, 2010 Amendments. Based on the evidence in the record, the Post calculates Mr. Mack’s total potential economic damage suffered as a result of his FMLA claims as $4,239.36. See Mem. at 35-36. Mr. Mack’s opposition to the Post’s motion entirely fails to address the issue of FMLA damages, and Mr. Mack therefore has conceded the point. “It is understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” Buggs v. Powell, 293 F.Supp.2d 135, 141 (D.D.C.2003) (citing FLIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997)); accord Lewis v. District of Columbia, No. 10-5275, 2011 WL 321711, at *1 (D.C.Cir. Feb. 2, 2011); Harris v. CitiMortgage, Inc., 878 F.Supp.2d 154, 163 (D.D.C.2012). The Court therefore concludes that Mr. Mack’s FMLA damages, should he prevail on his claims under that statute, will be limited to $4,239.36. IV. CONCLUSION For the foregoing reasons, the defendant’s motion for summary judgment has been granted. An Amended Order consistent with this Opinion shall be issued this same day. SO ORDERED. . The papers reviewed in connection with this matter include the following: plaintiff’s complaint in Civil Action No. 09-2291 (“Complaint”); defendant's answer (\"Answer”); defendant’s motion for summary judgment (\"Mot.”), statement of material facts (\"Def. Stmnt.”), and supporting memorandum (\"Mem.”); plaintiff's opposition (\"Opp.”) and statement of material facts (\"PL Stmnt.”); and defendant's reply (\"Reply”). . Some opinions state that courts have presumed receipt of right-to-sue notices within up to seven days. See, e.g., Taylor v. Books A Million Inc., 296 F.3d 376, 379 (5th Cir. 2002); Lozano v. Ashcroft, 258 F.3d 1160, 1164 (10th Cir.2001). Despite these statements, it does not appear that a seven-day rule has ever actually been applied by a" }, { "docid": "6936055", "title": "", "text": "hostile work environment claim. See Def.’s Mem. at 8-12. Plaintiffs opposition nowhere addresses this argument. See generally Pl.’s Opp’n. Nor does it even discuss the legal standards governing hostile work environment claims; rather, Plaintiff states very clearly that “[t]his is a claim for retaliation” based upon specifically enumerated, discrete incidents. See PL’s Opp’n at 1-3. “It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997); Stephenson v. Cox, 223 F.Supp.2d 119, 121 (D.D.C.2002)), aff'd, 98 Fed.Appx. 8 (D.C.Cir.2004). Accordingly, insofar as the Amended Complaint could be construed to assert a hostile work environment claim on the basis of retaliation, Plaintiff has abandoned such claim. Having unscrambled the pleading as it now stands, the Court shall turn to the single count remaining in this matter, retaliation in violation of Title VII. While Plaintiffs Amended Complaint alleges several experiences Plaintiff had during the course of her employment with Defendant, her opposition brief helpfully clarifies upon which of those incidents Plaintiffs retaliation claim relies. Specifically, Plaintiff asserts that after she made her January 2004 formal request to Chief Illige for leave on Sundays so that Plaintiff may attend church services, Defendant retaliated against her when: (1) Plaintiffs supervisor, Mr. Madison, repeatedly told her that Defendant would never give her Sundays off because Defendant was trying to “get rid” of or terminate her; (2) Mr. Madison angrily confronted her and told her that the one thing he did not like was “a lying ass Christian woman”; (3) Defendant changed her duties from a mixture of interpretive duties and maintenance duties to solely maintenance duties; (4) Defendant required Plaintiff to account for every minute of her work day and assigned her duties for each minute of the work day when previously Plaintiff had simply been given a list of tasks" }, { "docid": "22256706", "title": "", "text": "each non-selection decision separately. (1)The Plaintiff’s Application for the Senior Management Analyst Positions While it appears from the plaintiffs complaint that he claims that his non-selection for the two Senior Management Analyst positions in September 1997 was the result of racial discrimination, see Compl. ¶ 9, the Court concurs with the defendant’s assessment that the plaintiff has failed to respond to the defendant’s motion for summary judgment on this claim. See Defendant’s Reply to Plaintiffs Oppositions to Defendant’s Motion for Summary Judgment (“Reply”) at 11. The defendant asserts that the plaintiff was not selected for the two Senior Management Analyst positions because he was not as qualified as the individuals who were selected. Def.’s Mem. at 21-25. This Court’s Local Rule 7(b) states: Within 11 days of the date of service or at such other time as the court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion. If such a memorandum is not filed within the prescribed time, the court may treat the motion as conceded. Rules of the United States District Court for the District of Columbia, LCvR 7(b) (emphasis added). It is understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded. FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997); Stephenson v. Cox, 223 F.Supp.2d 119, 121 (D.D.C.2002). The District of Columbia Circuit has stated that “the discretion to enforce ... [Rjule [7(b) ] lies wholly with the district court[,]” Bender, 127 F.3d at 67-68 (citing Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C.Cir.1997)), and noted that it “ha[s] yet to find that a district court’s enforcement of this rule constituted an abuse of discretion.” Id. (citations omitted). Accordingly, because the plaintiff had the opportunity to respond to all of the challenges to the claims in his complaint, the Court will construe his failure to respond to the defendant’s assertion regarding why he was" }, { "docid": "10076116", "title": "", "text": "Motion for Reconsideration was granted as to all File Numbers except for Sub S0-3041 (Serial 3041). Order, Jan. 8, 2007 [Dkt. No. 43], . Specifically, Defendant was ordered to conduct a search of (1) the ICM database, using relevant file numbers and dates; (2) the ECF database that \"captures at least the ‘six-way phonetic breakdown’ of Negley’s name”; (3) the ELSUR database; (4) the Zy database; (5) the SFFO card index; (6) FBIHQ; and (7) handwritten notes, personal files and restricted files. Order 2-3, Sept. 24, 2009. . The Seventh Hardy Declaration noted that some records located from these searches were not produced to Plaintiff: (1) from the UNI search, “administrative files related to the Plaintiff’s prior FOIA/PA requests to other field offices and the FBI’s file related to this litigation file”; (2) from the ECF search, five serials in which Plaintiff’s name appeared in the text. One serial was a litigation file concerning the SFFO, three serials were from Plaintiff's prior FOIA/PA requests to the Miami, Los Angeles, and San Antonio field offices, and the fifth serial did not concern Plaintiff. Seventh Hardy Decl. ¶ 39(b). . Plaintiff has failed to contest the FBI’s invocation of any exemption other than 7(C). Therefore, the Court may treat the Defendant’s arguments concerning Exemptions 6 and 7(D) as conceded. Fischer v. United States Dep’t of Justice, 723 F.Supp.2d 104, 110 (D.D.C.2010) (“It is proper to treat defendant’s argument as conceded, with regard to the exemptions and categories not challenged by plaintiff.”) (internal quotation omitted); Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (\"It is well understood in this Circuit that when a plaintiff files an opposition to a dis-positive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.\") (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997)). Similarly, Plaintiff has not opposed Defendant's argument that it has released all reasonably segregable portions of exempt records. Def.'s Mot. 34; see 5 U.S.C. § 552(b). The FBI's declarant has stated that the FBI" }, { "docid": "17222053", "title": "", "text": "that her decision was a pretext for illegal discrimination. Having conceded that he committed the misconduct with which he was charged, and having failed to show any disparate treatment, Mr. Jones has failed to rebut GSK’s legitimate nondiscriminatory reason for his discharge — including making any showing that Ms. Turbeville did not honestly believe that Mr. Jones purposefully submitted false reports — and has utterly failed to connect his discharge in any way to his race and/or gender. B. Alleged Wrongful Discharge Mr. Jones claims that he had “an implied contract of due process prior to the termination of [his] employment” through an “investigative process” to review al leged employee misconduct that was not followed and “an opportunity to grieve the allegations” which he was not afforded. Third Am. Compl. ¶¶ 73-75, 80. GSK contends that the claim is untimely and without merit. The wrongful discharge claim was added to this lawsuit only when the Third Amended Complaint was filed on September 9, 2009. Mr. Jones was discharged on or about March 30, 2006. In the District of Columbia, the statute of limitations for a wrongful discharge claim is three years. See Walker v. Pharm. Research and Mfrs. Of America, 439 F.Supp.2d 103, 108 (D.D.C.2006) (“In the District of Columbia, a litigant complaining of wrongful discharge must bring an action within three years after the claim accrues.”) (citing D.C. Code § 12-301(8)). GSK argues this claim is untimely as it does not relate back to the original pleading. See Def.’s Mem. 25-26. Mr. Jones makes no response to this argument in his Opposition and, therefore, it is deemed conceded. See LCvR 7(b); Hopkins v. Women’s Div., General Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C.2002) (“It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997)). The wrongful discharge claim must be dismissed as barred by the statute of limitations." }, { "docid": "11541315", "title": "", "text": "finding under Rule 26 that its proffer was untimely and a finding under Rule 37(c) that the delay in submission was neither “substantially justified” nor “harmless.” Id. at 33-37. We take the issues in that order. Untimely under Rule 26. The new Markowitz declaration was submitted two years after the close of expert discovery as set by the district court. The plaintiff now argues that the declaration was, nonetheless, timely as a “supplemental” declaration under Rule 26(e). The district court ruled that the plaintiff had waived this argument. The district court’s local rules provide that a court may treat a motion as “conceded” if an opposing brief is not filed within the prescribed time. D.D.C. R. 7(b). The rule is understood to mean that if a party files an opposition to a motion and therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as conceded. Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997) (in turn citing the predecessor to Local Rule 7(b))). Such a concession “acts as waiver,” such that a “party cannot raise [a] conceded argument on appeal.” Getter v. Randi, 40 F.3d 1300, 1304 (D.C.Cir.1994) (citing predecessor to Local Rule 7(b) and Weil v. Seltzer, 873 F.2d 1453, 1459 (D.C.Cir.1989)). We review a district court’s finding of waiver under Local Rule 7(b) for abuse of discretion—though “we have yet to find that a district court’s enforcement of this rule constituted [such] an abuse.” FDIC v. Bender, 127 F.3d at 67; see also Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 577 (D.C.Cir.1997) (“Where the district court relies on the absence of a response as a basis for treating [a] motion as conceded, we honor its enforcement of the rule.” (citing predecessor to Local Rule 7(b))). The district court held that the plaintiff waived Rule 26(e) because he did not raise the argument “in his opposition to the defendant’s motion to strike.” Wannall, 292 F.R.D. at 34. The plaintiffs decision not to invoke Rule 26(e) was" }, { "docid": "22896936", "title": "", "text": "this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded. FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997); Stephenson v. Cox, 223 F.Supp.2d 119, 121 (D.D.C.2002). The District of Columbia Circuit has stated that “the discretion to enforce ... [R]ule [7.1(b) ] lies wholly with the district court”, Bender, 127 F.3d at 67-68 (citing Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C.Cir.1997)), and noted that the Circuit “ha[s] yet to find that a district court’s enforcement of this rule constituted an abuse of discretion”, id. (citations omitted). Therefore, because the plaintiff has failed to address the defendants positions that certain claims in the complaint should be dismissed, the Court will treat those claims as conceded. Accordingly, the Court will consider only the plaintiffs religious discrimination claim under Title VII and her race discrimination claims under Title VII and Section 1981. (1) Is the Plaintiffs Religious Discrimination Claim under Title VII Barred? Section 702(a) of Title VII provides a specific exemption from Title VII’s cover age for religious institutions, stating that “[t]his subchapter shall not apply ... to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” 42 U.S.C. § 2000e-1(a). Thus, the defendants assert that the plaintiff’s Title VII religious discrimination claim must be dismissed because they are religious entities exempt from Title VII’s coverage. Defs.’ Mot. at 11-14. In response, the plaintiff claims that this exemption only applies if the “organization makes its employment decision upon religious basis or criteria ... [and] because the alleged religious discrimination occurred after Plaintiff was hired and not during the .hiring process” the religious institution exemption is not applicable. Plaintiffs Opposition to Defendants’ Motion to Dismiss (“Pl.’s Opp’n”) at 8. This Court must agree with the defendants that “the exemption of Section 702(a) quite" }, { "docid": "3957218", "title": "", "text": "plaintiff has waived this argument. See, e.g., In re Asemani, 455 F.3d 296, 300 (D.C.Cir.2006) (a litigant’s argument “[was] waived because it was made for the first time in [appellant’s] reply brief’); Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997))). Even if the plaintiff had not waived this argument, the argument would still fail on the merits. Rule 26(e) imposes a duty on a party to “supplement or correct its [26(a) ] disclosure or response ... if the party learns that in some material respect the disclosure or response is incomplete or incorrect.” Fed.R.Civ.P. 26(e)(1). This duty only applies “if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Id. Rule 26(e) “does not permit parties to file supplemental reports whenever they believe such reports would be ‘desirable’ or ‘necessary’ to their case.” Minebea Co. v. Papst, 231 F.R.D. 3, 6 (D.D.C.2005); accord Dag Enters., Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 110 (D.D.C.2005) (observing that Rule 26(e) “ ‘does not ... bestow upon litigants unfettered freedom to rely on supplements produced after a court-imposed deadline, even if the rule’s pretrial limit is satisfied’ ” (quoting Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655, 662 (N.D.Ga.2001))). Rather, Rule 26(e) “permits supplemental reports only for the narrow purpose of correcting inaccuracies or adding information that was not available at the time of the initial report.” Minebea, 231 F.R.D. at 6 (citing Keener v. United States, 181 F.R.D. 639, 640 (D.Mont.1998)). “To construe supplementation to apply whenever a party wants to bolster or submit additional expert opinions would reek [sic] havoc in docket control and amount to unlimited expert opinion preparation.” Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306, 310 (M.D.N.C.2002);" }, { "docid": "11541314", "title": "", "text": "“supplement or correct” certain disclosures previously made in discovery, including experts’ reports, as needed to reflect “additional or corrective information.” Nor did he move under Rule 56(d) for permission to take additional discovery in response to Honeywell’s motion. Instead, he argued that Honeywell’s motion for reconsideration of the summary judgment issue was not justified because “Boomer did not ... change Virginia law.” Honeywell moved to strike the new Markowitz declaration as untimely under the scheduling order, Rule 26, and Rule 37(c). The plaintiff filed an opposition, but once again failed to argue that Rule 26(e) justified filing the new declaration to “supplement or correct” his expert’s prior report. Instead, he relied exclusively on his “right” under Rule 56(c)(4) “to produce an affidavit or declaration to support or oppose a summary judgment motion.” The district court granted Honeywell’s motion to strike the new Markowitz declaration and its renewed motion for summary judgment in light of Boomer. Wannall, 292 F.R.D. 26. Exclusion of the new Markowitz declaration from consideration on the merits proceeded in two steps: a finding under Rule 26 that its proffer was untimely and a finding under Rule 37(c) that the delay in submission was neither “substantially justified” nor “harmless.” Id. at 33-37. We take the issues in that order. Untimely under Rule 26. The new Markowitz declaration was submitted two years after the close of expert discovery as set by the district court. The plaintiff now argues that the declaration was, nonetheless, timely as a “supplemental” declaration under Rule 26(e). The district court ruled that the plaintiff had waived this argument. The district court’s local rules provide that a court may treat a motion as “conceded” if an opposing brief is not filed within the prescribed time. D.D.C. R. 7(b). The rule is understood to mean that if a party files an opposition to a motion and therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as conceded. Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997) (in" }, { "docid": "6936054", "title": "", "text": "expressly states that she does not in fact assert a separate discrimination claim. See PL’s Opp’n at 2-3 (“Ms. Payne is not pursuing a claim for discrimination[.]”). Furthermore, as the only facts included in the Amended Complaint that arguably support a claim of discrimination are identical to those underlying the religious discrimination claim which she asserted in her EEO Complaint, see generally Am. Compl., the Court un derstands that Plaintiffs Amended Complaint does not include a separate claim for discrimination in violation of Title VII. Second, although Plaintiffs Amended Complaint does not assert a separate count alleging a hostile work environment claim, it does contend, as part of the retaliation claim that Defendant “subjected [Plaintiff] to a hostile work environment” by engaging in the various alleged retaliatory actions. Am. Compl. ¶ 22. Defendant argues that, to the extent Plaintiff is asserting a separate hostile work environment claim, such claim must fail both because Plaintiff did not initiate a claim for hostile work environment at the administrative level and because she cannot establish a prima facie hostile work environment claim. See Def.’s Mem. at 8-12. Plaintiffs opposition nowhere addresses this argument. See generally Pl.’s Opp’n. Nor does it even discuss the legal standards governing hostile work environment claims; rather, Plaintiff states very clearly that “[t]his is a claim for retaliation” based upon specifically enumerated, discrete incidents. See PL’s Opp’n at 1-3. “It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997); Stephenson v. Cox, 223 F.Supp.2d 119, 121 (D.D.C.2002)), aff'd, 98 Fed.Appx. 8 (D.C.Cir.2004). Accordingly, insofar as the Amended Complaint could be construed to assert a hostile work environment claim on the basis of retaliation, Plaintiff has abandoned such claim. Having unscrambled the pleading as it now stands, the Court shall turn to the single count" }, { "docid": "6241071", "title": "", "text": "as conceded.” Payne v. District of Columbia, 592 F.Supp.2d 29, 37 (D.D.C.2008) (citing Fox v. Am. Airlines, Inc., 295 F.Supp.2d 56, 58 (D.D.C.2003), aff'd, 389 F.3d 1291 (D.C.Cir.2004)); Hopkins v. Women’s Div., General Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C.2002) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997)) (“It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”). Accordingly, because Peter B. makes no attempt to preserve any argument that he was not a CIA employee subject to the CSRA, the defendants’ argument that Peter B. was a CIA employee subject to the CSRA will be deemed conceded and will be accepted. B. APA review of adverse personnel decisions (Counts I and IV) In Counts I and IV of the amended complaint, Peter B. seeks APA review of the CIA’s alleged misclassification of his employment status, the decision to deny him certain benefits, and the decision to terminate his employment with the CIA. (Am. Compl. ¶¶ 22-28; 44-54.) The defendants contend that these claims “challenge various personnel actions” which are precluded from review by the CSRA, and that the CSRA provides the exclusive framework for how federal employees may seek review of adverse personnel decisions. (See Defs.’ Mem. at 5-8.) When enacted, the CSRA “established an elaborate new framework for evaluating adverse personnel actions [taken] against certain categories of federal employees.” Doe v. Goss, Civil Action No. 04-2122(GK), 2007 WL 106523, at *4 (D.D.C. Jan. 12, 2007). The scheme is a comprehensive and “exclusive framework for judicial review” of personnel decisions within its ambit. Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv., 940 F.2d 704, 709 (D.C.Cir.1991) (internal quotations and citations omitted). “The CSRA expressly excludes CIA employees from the classes of employees for whom the CSRA’s review procedures are available.” Doe v. Goss, 2007 WL 106523, at *6 (citing 5 U.S.C. §§ 2302(a)(2)(A), 7511(b)(7)). Although CIA employees are excluded from those employees permitted to" }, { "docid": "17222054", "title": "", "text": "the District of Columbia, the statute of limitations for a wrongful discharge claim is three years. See Walker v. Pharm. Research and Mfrs. Of America, 439 F.Supp.2d 103, 108 (D.D.C.2006) (“In the District of Columbia, a litigant complaining of wrongful discharge must bring an action within three years after the claim accrues.”) (citing D.C. Code § 12-301(8)). GSK argues this claim is untimely as it does not relate back to the original pleading. See Def.’s Mem. 25-26. Mr. Jones makes no response to this argument in his Opposition and, therefore, it is deemed conceded. See LCvR 7(b); Hopkins v. Women’s Div., General Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C.2002) (“It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997)). The wrongful discharge claim must be dismissed as barred by the statute of limitations. IV. CONCLUSION The Title VII claims advanced by Mr. Jones have no merit and his wrongful discharge claim is barred by the statute of limitations. The Defendant’s motion for summary judgment will be granted, and the case will be dismissed. Accordingly, the Defendant’s motion to treat its motion for summary judgment as conceded will be denied as moot. A memorializing Order accompanies this Memorandum Opinion. . See Third Am. Compl. [Dkt. # 41] ¶ 1. Since filing the Third Amended Complaint, Mr. Jones has \"concede[d] all counts except the claim of Harassment under Title VII and the claim of wrongful termination.\" See Pl.’s Opp’n to Def.’s Mot. to Treat its Unopposed Mot. as Conceded [Dkt. # 49] ¶ 6; Pl.’s Opp’n to Def.’s Mot. for Summ. J. [Dkt. # 50] 3. . The facts which bear no citation are from the Defendant’s Statement of Material Facts that Mr. Jones does not contest. See Def.'s Facts [Dkt. # 44]; see also Opp'n 5-10. . It is clear that Mr. Jones was having a very difficult relationship" }, { "docid": "17850801", "title": "", "text": "date is the date on which OHR affirmed its decision, as opposed to, say, the last date covered by the agency’s investigation, Plaintiff has failed to respond to Defendant’s argument on this front, effectively conceding the point. See, e.g., Hopkins v. Women’s Div., General Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address -as conceded.”) (citing FDIC n Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997), and Stephenson v. Cox, 223 F.Supp.2d 119, 121 (D.D.C.2002)). She, accordingly, cannot seek relief under the DCHRA for conduct that occurred before March 10, 2008. 2. ADA The District also questions the permissible scope of Plaintiffs ADA claim on the ground that she failed to exhaust her administrative remedies with the EEOC. More specifically, it believes that she filed her first EEOC Charge of Discrimination too late to challenge many of the allegedly unlawful practices, and that her second EEOC Charge of Discrimination was too vague. The Court will analyze these issues separately. a. Timeliness of First EEOC Charge It is well established that “[bjefore bringing suit in federal court, ADA plaintiffs, like those under Title VII, must exhaust their administrative remedies by filing an EEOC charge and giving that agency a chance to act on it.” Marshall v. Fed. Exp. Corp., 130 F.3d 1095, 1098 (D.C.Cir.1997) (citing 42 U.S.C. § 12117(a) and Park v. Howard Univ., 71 F.3d 904, 907-09 (D.C.Cir.1995)); see also 42 U.S.C. § 12117 (incorporating procedural provisions of Title VII for ADA causes of action); Mayers v. Laborers’ Health & Safety Fund of North America, 478 F.3d 364, 368 (D.C.Cir.2007) (“The ADA incorporates the procedural provisions of Title VII of the Civil Rights Act of 1964----”). Such charge must be filed “within a specified period ... after the alleged unlawful employment practice occurred.” Hodge v. United Airlines, 666 F.Supp.2d 14, 20 (D.D.C.2009) (quoting Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S." }, { "docid": "14398769", "title": "", "text": "document, which is a single page titled “HARASSMENT,” providing neither a defense nor an explanation for this undated, anonymously authored document which appears on page 7 of Exhibit 12 in the plaintiffs opposition motion. Accordingly, because the plaintiff has not responded to the defendant’s challenge to the “HARASSMENT” document, the defendant’s motion to strike this document is granted as conceded, and the one-page document will be struck from Exhibit 12 of the plaintiffs opposition. See Schneider v. Kissinger, 412 F.3d 190, 200 n. 1 (D.C.Cir. 2005) (finding that arguments that the plaintiff does not address may be treated\" as conceded). The Court now turns to the dispute over the challenged Butler declaration. As noted, the first document the defendant seeks to strike is the disputed Butler Declaration, which is a signed statement dated September 25, 2013, by a State Department physical security officer intended to corroborate the plaintiffs testimony that she met on November 15, 2006, with Cary and that Coquis observed them. Butler states that he “observed Anita Carey [sic] in [the plaintiffs] Office having a conversation with” the plaintiff, Butler Decl. ¶¶ 12-13, and further that he was not the only person watching the two women meet because he “observed Roberto Co-quis directly outside Ms. Brook’s [sic] office, -watching her through the glass front, as she spoke to Anita Carey [sic],” id. ¶14. As the defendant points out, this declaration by Butler, an undisclosed witness, “was only obtained five days prior to the filing of [the plantiffs] Opposition, almost seven years after the events that he allegedly witnessed.” Def.’s Mot. Strike at 7. “[District courts have ‘broad discretion in structuring discovery.’ ” Hussain v. Nicholson, 435 F.3d 359, 363-64 (D.C.Cir.2006) (quoting Edmond v. U.S. Postal Serv. Gen. Counsel, 949 F.2d 415, 425 (D.C.Cir.1991)). Consequently, “[t]he decision to grant or deny a motion to strike is vested in the trial judge’s sound discretion.” Canady v. Erbe Elektromedizin GmbH, 384 F.Supp.2d 176, 180 (D.D.C.2005); see also Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C.Cir.2007) (recognizing that district courts have broad discretion over discovery); Hussain, 435 F.3d at" }, { "docid": "22256707", "title": "", "text": "motion as conceded. Rules of the United States District Court for the District of Columbia, LCvR 7(b) (emphasis added). It is understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded. FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997); Stephenson v. Cox, 223 F.Supp.2d 119, 121 (D.D.C.2002). The District of Columbia Circuit has stated that “the discretion to enforce ... [Rjule [7(b) ] lies wholly with the district court[,]” Bender, 127 F.3d at 67-68 (citing Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C.Cir.1997)), and noted that it “ha[s] yet to find that a district court’s enforcement of this rule constituted an abuse of discretion.” Id. (citations omitted). Accordingly, because the plaintiff had the opportunity to respond to all of the challenges to the claims in his complaint, the Court will construe his failure to respond to the defendant’s assertion regarding why he was not selected for the two Senior Management Analyst positions as a concession that the selected candidates were more qualified. (2) The Plaintiff’s Application for Chief of the Facilities Planning Group The defendant asserts that Marianne Jentilucci was selected for the position of Chief of Facilities Planning Group instead of the plaintiff because she was the more qualified candidate. Def.’s Mem. at 25-27. Robert Brandon, the selecting official, stated that he already had a good idea of all the internal applicants within our branch who would possibly apply. I had a good knowledge of their strengths and weaknesses. I knew I wanted a very strong manager who had a basic knowledge of AutoCAD which is a software package used primarily by architects and space designers/planners. I also thought the person should have a good understanding of design, construction and space planning which would give them the knowledge to understand construction drawings and plans allowing them to deal with large construction contracts. Id. at 26 (citing Def.’s Mem., Exhibit (“Ex.”) 16 (Brandon EEO Affidavit)) (emphasis added). In" }, { "docid": "22896935", "title": "", "text": "a claim pursuant to Rule 12(b)(6) only if the defendant can demonstrate “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. 99. III. Legal Analysis At the outset, this Court must address the fact that the plaintiff has failed to respond to some of the assertions raised in the defendants’ motion to dismiss. Specifically, the plaintiff has only responded to the defendants’ motion to dismiss her race discrimination claims that have been brought pursuant to Title VII and Section 1981 and her religious discrimination claim pursuant to Title VII. This Court’s Local Rule 7.1(b) states: Within 11 days of the date of service or at such other time as the court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion. If such a memorandum is not filed within the prescribed time, the court may treat the motion as conceded. It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded. FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997); Stephenson v. Cox, 223 F.Supp.2d 119, 121 (D.D.C.2002). The District of Columbia Circuit has stated that “the discretion to enforce ... [R]ule [7.1(b) ] lies wholly with the district court”, Bender, 127 F.3d at 67-68 (citing Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C.Cir.1997)), and noted that the Circuit “ha[s] yet to find that a district court’s enforcement of this rule constituted an abuse of discretion”, id. (citations omitted). Therefore, because the plaintiff has failed to address the defendants positions that certain claims in the complaint should be dismissed, the Court will treat those claims as conceded. Accordingly, the Court will consider only the plaintiffs religious discrimination claim under Title VII and her race discrimination claims under Title VII and Section 1981. (1) Is the Plaintiffs Religious" } ]

[ { "docid": "22234525", "title": "", "text": "not contest here the right of Bethlehem to retain its “fixed fee” of approximately $12,-000,000 for the construction of the ships. The dispute revolves around an additional sum of $12,000,000 which Bethlehem claims under the so-called “bonus-for-savings” provision of the contracts. That provision in the several contracts was the same except for the amount of the fixed fee. Thus a typical contract provided: “Should the actual cost be less than the estimated . . . cost . . . the Contractor shall be allowed as profit on each vessel in addition to said fixed sum for profit of . . . $210,000 one-half the amount by which such actual cost of each vessel falls short of the estimated cost . . .” I agree that the consummation of the bargain depended upon the inclusion of this “savings” clause and that in each instance there was but one contract, not several. My view, however, is that each contract was divisible or severable. “. . . the essential feature of such a contract is that a portion of the price is by the terms of the agreement set off against a portion of the performance and made payable for that portion, so that when an apportioned part of the performance has been rendered a debt for that part immediately arises.” Williston on Contracts, § 861 (Rev. Ed.). In other words, the whole performance of each contract was divided “into two sets of partial performances, each part of each set being the agreed exchange for a corresponding part of the set of performances to be rendered by the other promisor.” Id., § 860A. (1) The promise of the Fleet Corporation to pay the actual cost plus the fixed fee was exchanged for Bethlehem’s undertaking to construct the ships. (2) The promise of the Fleet Corporation to pay one-half the amount by which the actual cost fell short of the estimated cost was exchanged for Bethlehem’s promise (which is implied) to effect the savings by increasing efficiency. Although I am clear that the contracts would not have been made but for the inclusion of" } ]

[ { "docid": "18758957", "title": "", "text": "this Court that the parties intended to consider the BOS Contract as a single, interdependent contract, not as eleven divisible contracts. It appears undisputable that the parties reached the agreement regarding the various items as a whole, as opposed to reaching an agreement regarding each item individually as a unit. Although there are estimated price breakdowns, the testimony indicated that these breakdowns were nothing more than estimates to assure that the contractor was realistically bidding on the contract as a whole. Such breakdown was not intended to create a steadfast pricing for the individual functions to be performed under the BOS Contract. Applying the Holly’s and Gardinier test to this case, the different contract functions, in some instances, are arguably of a “differing nature and purpose” sufficient to allow independent assumption and rejection. The consideration for the functions was, however, not separate and distinct to the extent that the bankruptcy court could compel the Navy, under the purpose and form of its contract, to accept the individually apportioned cost items of the overall contract for option extension purposes. In addition, the Court believes the obligations of the parties to the BOS Contract were clearly interrelated. The Navy also presented evidence, and the Court carefully considered the weight of this evidence, that with such a fundamental change in the contractual relationship between Plum Run and the Navy (after termination of the housing maintenance portion of the contract), it would violate the Navy’s competitive bidding obligation to exercise “80% of an option”. With respect to the requirements of § 365, in order to assume a contract, the Debtor must cure or provide adequate assurance that any default would be cured; compensate or provide adequate assurance for any actual pecuniary loss to a party other than the Debtor resulting from the default; and provide adequate assurance of future performance under the contract. Here, the default and subsequent termination of the housing maintenance portion of the contract is, without question, a default incapable of cure. This would provide additional support for the Court to prevent the Debtor from assuming the contract. Based on the" }, { "docid": "18513867", "title": "", "text": "be acted on separately such that the failure to perform one promise does not necessarily put the promisor in breach of the entire agreement.” Black’s Law Dictionary 1373-74 (6th ed. 1990). Black’s Law Dictionary defines divisible and severable contracts in similar terms. Under Texas law, a contract is divisible, or severable, when one party’s performance consists of more than one “distinct and separate item[ ] and the price paid by the other party is apportioned to each item.” In re Ferguson, 183 B.R. 122, 124 (Bankr.N.D.Tex.1995) (quoting Johnson v. Walker, 824 S.W.2d 184, 187 (Tex.App.—Fort Worth 1991, no writ)). No one test or rule of law can be used to ascertain whether a contract is divisible or indivisible. Johnson, 824 5.W.2d at 187. “Determination of the issue depends primarily on the intention of the parties, the subject matter of the agreement, and the conduct of the parties.” Id. (citations omitted). The intent of the parties is the principal determinant of divisibility. Lake LBJ Mun. Util. Dist. v. Coulson, 771 S.W.2d 145, 153 (Tex.App.—Austin 1988), rev’d on other grounds, 781 S.W.2d 594 (Tex.1989); see also Sheline v. Dun & Bradstreet Corp., 948 F.2d 174, 177 (5th Cir.1991) (finding that unenforceable covenant not to compete could not be severed from the remainder of a severance agreement because severability “is governed by the intent of the parties”); Nat'l Iranian Oil Co. v. Ashland Oil, Inc., 817 F.2d 326, 333 (5th Cir.) (noting that “whether [an agreement] is entire or severable turns on the parties’ intent at the time the agreement was executed, as determined from the language of the contract and the surrounding circumstances”), cert. denied, 484 U.S. 943, 108 S.Ct. 329, 98 L.Ed.2d 356 (1987). In construing a contract, its unambiguous language alone will generally be deemed to express the intent of the parties. Norman v. Apache Corp., 19 F.3d 1017, 1024 (5th Cir.1994). “The issue as to severability is whether or not the parties would have entered into the agreement absent the [severed] parts.” McFarland v. Haby, 589 S.W.2d 521, 524 (Tex.Civ.App.—Austin 1979, writ ref d n.r.e.) (holding that contract was" }, { "docid": "1918307", "title": "", "text": "agreed upon” in the future as distinguished from the merchandise which defendant bought. This part of the contract relating to the merchandise which defendant was to “buy” within one year on terms stated therein “in its nature and purpose is susceptible of division” from the other part of the contract. In the case of Lucesco Oil Co. v. Brewer, 66 Pa. 351, 354, the Supreme Court of Pennsylvania said: “If the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable. * * * But if the consideration to be paid is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items.” In the case of Traiman v. Rappaport, 41 F.(2d) 336, 338, 71 A. L. R. 475, we said: “The Statute of Frauds affects the contract in suit according as it may be an entire or a separable contract under familiar law that if a part of an oral contract, falling within the scope of the statute, is in violation of the statute, the whole contract, if it is entire and indivisible, is within the statute and unenf oreible; but if the epntraet is divisible, that part of it which is not within the scope of the statute may be enforced. 27 C. J. 318. Whether a contract is entire or divisible depends very largely on its terms and on the intention of the parties disclosed by its terms. As a general rule a contract is entire when by its terms, nature and purpose, it contemplates and intends that each and all of its parts are interdependent and common to one another and to the consideration. On the other hand, it is the general rule that a severable contract is one which in its nature and purpose is susceptible of division and apportionment. 13 C." }, { "docid": "8895364", "title": "", "text": "any part of the privilege was exercised was permissible. Cf. Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 70 S.Ct. 894, 94,L.Ed. 1312. Their intent in this respect , . , , . .. is apparen rom t e anguage o t e icense and that intent controls to prevent any judicial division or allocation of royalties to a particular patent or patents on the basis of whether one patent or more covered devices on which royalties are payable. Cf. Cosden Oil Co. v. Scarborough, 5 Cir., 55 F.2d 634; Traiman v. Rappaport, 3 Cir., 41 F.2d 336, 71 A.L.R. 475 Any seeming harshness resulting from this construction of the license agreement follows not from anything inherent in such a construction, or in the license itself, but because of the prior contract between Padua and Parissi. On the facts of this record that seems to have been an improvident one on the part of Parissi though, if all the circumstances appeared, they might show that it was not. However that may be, it did not require Parissi to tie into a license of those patents in which Padua had an interest, other patents in which it had none. He did, however, tie them in as part of the inducement to General Time to take the license. Having secured whatever advantage that may have given him in his negotiations with General Time leading up to the execution of the license, he should bear the burden of what-ever disadvantage flows from his contract with Padua. in 0ne respect, however, the judgment is too broad. It provides that all payments under the General Time license subsequent to those made into court shall be made tó Padua. The latest of the four patents covered by its agreement with Parissi will ex-p¡re on November 9, 1954. After that date, the license agreement will apply only to patents covering the so-called additional developments and in which Padua has no in-terest. Consequently, the failure to pro-vide for the allocation of royalties between the two groups of patents will then no longer be controlling and" }, { "docid": "5606112", "title": "", "text": "done prior to such date, may bo commenced or*prosecuted within the same time, and with the same effect, as if such repeal or amendments had not been made.” This section saves to the federal courts jurisdiction, ’ not only of pending actions, but of causes of action which accrued prior to January 1, 1912. Lincoln v. Robinson (D. C.) 194 Fed. 571; Taylor v. Midland Valley R. Co. (D. C.) 197 Fed. 323; Dallyn v. Brady (D. C.) 197 Fed. 494. 2. There is at least apparent conflict of authority as to the rules by which we determine whether a contract of insurance which insures several items of property is entire or divisible. In McGowan v. People’s M. F. Ins. Co., 54 Vt. 211, 41 Am. Rep. 843, the court said: •“This Is a question of great practical importance, as a large proportion .of insurance contracts embrace more than one item of property insured. The decisions are apparently conflicting, but, we think, are easily reconciled by referring to the plain principles which should govern them. The general rule, •void in part, void in toto,’ should apply to all cases where the contract is affected by some all-pervading vice, such as fraud, or some unlawful act, condemned by public policy or the common law, cases where the contract, is entire, and not divisible, and all those (‘ases where the matter that renders the policy void in part, and the result of its being so rendered void, affects the risk of the insurer upon the other items ill the contract. Keeping these rules iy mind, the leading cases upon this subject can all be reconciled.!’ . ■ • .. In Loomis v. Rockford Insurance Co., 77 Wis. 87, 45 N. W. 813, 8 L. R. A. 834, 20 Am. St. Rep. 96, the court said: “There is some apparent conflict of authority as to the rules by which it is to be determined whether the contract in a given case, which insures several items of properly, is an entire contract, or whether it is divisible. An examina t n of the cases" }, { "docid": "11463820", "title": "", "text": "such additional procurement and the Government shall have the right to reduce the total funds then allotted to calls under Items 1, 2 and 3 of Article 15A in an amount, equal to the amount of the funds allotted to the additional procurement, or in any amount equal to a part of the funds allotted to the additional procurement, provided, however, that any reduction effected thereby shall not reduce such funds by an amount greater than the amount of unused funds allotted to calls under Items 1, 2 and 3 of this Article 15A, after deducting amounts sufficient to cover all calls theretofore made. The delivery article was modified so as not to obligate the plaintiff to deliver more than 6,000,000 square feet of prints in any one week. After making other minor modifications, the supplemental agreement specifically deleted in its entirety the existing Article 39 providing for a revision of the contract price through negotiation. 25. Mr. Jones realized that Supplemental Agreement No. 5 was less advantageous to plaintiff than the original contract; and he therefore objected to it during negotiation conferences. Also, he was warned by a Government contract negotiator that by converting the original contract to a “call” or “requirements” type contract, and by eliminating the price redetermination provisions contained in Article 39 of the original contract, the Supplemental Agreement would have the effect of reducing plaintiff’s existing contractual rights. Throughout his testimony in the trial of this case, Mr. Jones consistently asserted that defendant’s contract representatives assured him verbally on several occasions that plaintiff would not be allowed to suffer losses in its Gadi Division and that the contract would be formally amended to reflect these assurances. As stated in finding 14, assurances of efforts to protect plaintiff against losses were given Mr. Jones. They played a direct part in his willingness to allow plaintiff to become a prime contractor on this job. On tlie other hand, the defendant’s contract negotiators believed that these assurances were entirely fulfilled by Article 39 of the contract providing for price redetermination after a “trial run” performance. As stated, this" }, { "docid": "11255725", "title": "", "text": "bonuses. Said inspector advised the Auditor of tho defendant to make no changes unless the inspector so advised. The defendant or its Auditor never heard from Inspector Stevenson. Inspector Smith, Representative, Wage and Hour and Public Contracts Divisions, Department of Labor, March, 1943. The inspector reviewed payrolls and other data in connection with payroll information. Question was raised as to the method of computing the overtime compensation by not including incentive bonuses. Information was given that the excess overtime paid by tho company would probably offset any payments required by tho Fair Labor Standards Act. No definite advice was given, one way or another. Subsequent to the investigation .just referred to, a letter was received on April 10, 1943, which was dated April 0, 194-3, from the Regional Director of the Wage and Hour and Public Contracts Divisions, Department of Labor, said letter being as follows: “U. S. Department of Labor ‘Wage and Hour Division “1216 Widener Bldg. “Philadelphia, Pa. “April G, 1943 “Address all communications to: “Regional Director “In reply refer to: “File No. 37-2315 “Mesta Machine Company “West Homestead, Pa. “Gentlemen: “A report recently submitted to this office by an inspector of the United States Department of Labor indicates that there are violations of the Wage-Hour and Public Contracts Acts in the performance of United States contracts as a result of failure to include bonus payments in the calculation of overtime. “This subject first came to tho attention of the Pittsburgh Office of the Wage-Hour Division in the early part of 1942 and on June 5, 1942 Inspector William F. Stevenson of the Division of Public Contracts called at your plant to ascertain the details, involved. “It is our understanding that you wore to be informed by tho Division’s Offices relative to the correctness of the method being used in the calculation of overtime, but we can find no record that such opinion or decision has been rendered up to the present time. “Both the Fair Labor Standards Act and the Public Contracts Act require the payment of overtime on employees’ total earnings including incentive bonuses, production bonuses," }, { "docid": "4680461", "title": "", "text": "field. What the plaintiffs are suing for is the amount just referred to which was deducted from amounts otherwise due them under the contract involved in this proceeding. No question is raised by the defendant as. to -the fact that the plaintiffs performed the services or that •-the'services' were-worth at least the .amount now sued. for.. The sole defense of the defendant is that since Major Russell was not a contracting officer with full authority to bind the Government in the fullest contractual sense, the plaintiffs cannot recover on this item. Surely, compelling reasons would be required to have any court sanction any such inequitable result and we do not think such reasons exist. Whatever might be said with respect to the lack of authority on the part of Major Russell to enter into a binding contract, it is certainly true that the plaintiffs proceeded in an entirely appropriate and proper manner in entering into the agreement and did so only after they were assured by Major Russell that he had authority to do so. Likewise, Major Russell had also proceeded in good faith in the entire matter and had been assured by Washington that such an arrangement would be satisfactory. The roads that were seal coated were wholly within the base where the contracting officer was located. It seems incredible that he did not know all about the agreement and by his inaction ratify it. Certainly he did not repudiate the agreement, and hedid not appear as a witness. The plaintiffs carried out their part of the agreement for which the Government received the benefit. We feel that there then arose an implied contract under which the defendant was obligated to pay the value of the services rendered by the plaintiffs. Recovery is accordingly allowable for this item in the amount deducted under the- contract, $10,166.39. Cf. W. H. Armstrong and Company v. United States, 98 Ct.Cl. 519, 529; Stiers v. United States, 121 Ct.Cl. 157, 172; and Pacific Maritime Association v. United States, 123 Ct.Cl. 667, 676. Judgment will accordingly be entered for $19,506.48 for the material item," }, { "docid": "11255673", "title": "", "text": "Avenue Corporation v. Asselta, supra, 331 U.S. 204, 67 S.Ct. 1178, 91 L.Ed. 1432, 169 A.L.R. 1293; Bay Ridge Operating Co., Inc., etc., supra. In Walling v. A. H. Belo Corporation, 316 U.S. 624, 634, 62 S.Ct. 1223, 86 L.Ed. 1716, the Supreme Court refrained from rigidly defining “regular rate” in a guaranteed weekly wage contract that met the statutory requirements of Section 7(a) for minimum compensation. The contract called for a regular or basic rate of pay above the statutory minimum and a guaranteed weekly wage of sixty times that amount. The Court refused to require division of the weekly wage actually paid by the hours actually worked to find the “regular rate” of pay and left its de termination to agreement of the parties. Where the same type of guaranteed weekly wages were involved, the Supreme Court has reaffirmed that decision as a narrow precedent principally because of public reliance upon and congressional acceptance of the rule there announced. (Italics supplied.) As the “regular rate” of pay cannot be left to a declaration by the parties as to what is to be treated as the “regular rate” for an employee, it must be drawn from what happens under the employment contract. The most reasonable conclusion is that Congress intended the “regular rate” of pay to be found by dividing the weekly compensation by the hours worked unless the compensation paid to the employee contains some amount that represents an overtime premium. If such overtime premium is included in the weekly pay check, that must be deducted before the division. This deduction of overtime premium from the pay for the workweek results from the language of the statute. When the statute says that the employee shall receive for his excess hours one and one-half times the regular rate at which he is employed, it is clear to me that Congress intended to exclude overtime premium payments from the computation of the “regular rate” of pay. To permit overtime premium to enter into the computation of the “regular rate” would be to allow overtime premium on overtime premium — a" }, { "docid": "1918306", "title": "", "text": "plaintiff which in order to carry out its part of the contract was to pay the freight on the equipment, install the plant, set up a new department, and “train an organization to carry it on.” All this was done. The defendant was to buy from the plaintiff within one year from the date of the agreement, after first allowing thirty days for the installation of the equipment, the merchandise thus manufactured in the amount of $70,000.00 “figured on your (plaintiff’s) cost, that is, materials, labor and overhead as you figure it.” This part of the contract was clear and definite and was separate and distinct from the other part. The defendant was “to buy” the merchandise embraced in this part of the contract on stipulated .terms. This merchandise thereafter belonged to defendant to do with as it pleased. As to the other merchandise which defendant did not “buy,” and which remained “your (plaintiff’s) product,” defendant was to be plaintiff’s “sole sales agent” and was to offer it for sale “at prices to be mutually agreed upon” in the future as distinguished from the merchandise which defendant bought. This part of the contract relating to the merchandise which defendant was to “buy” within one year on terms stated therein “in its nature and purpose is susceptible of division” from the other part of the contract. In the case of Lucesco Oil Co. v. Brewer, 66 Pa. 351, 354, the Supreme Court of Pennsylvania said: “If the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable. * * * But if the consideration to be paid is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items.” In the case of Traiman v. Rappaport, 41 F.(2d) 336, 338, 71 A. L. R. 475, we said: “The" }, { "docid": "10522161", "title": "", "text": "contract remains one of fact, reviewable under a clearly erroneous standard. It further asserts that the continuing contract theory does not apply to these facts because the maintenance services on which Amtech relies are not lien-able. We agree with Payless. Texas accepts the general view of divisible contracts: no one test or rule of law is determinative as to whether a contract is entire or divisible. Johnson v. Walker, 824 S.W.2d 184, 187 (Tex.App.—Fort Worth 1991); St. John v. Barker, 638 S.W.2d 239, 243 (Tex.App.1982); Chapman v. Tyler Bank & Trust Co., 396 S.W.2d 143, 146 (Tex.Civ.App.—Tyler 1965). The determination depends primarily on the intention of the parties, the subject matter of the agreement, and the conduct of the parties. Walker, 824 S.W.2d at 187; St. John, 638 S.W.2d at 243; Chapman, 396 S.W.2d at 146-47. In general, Texas cases have held that a contract is divisible when the performance by one party consists of several distinct and separate items, and the price paid by the other party is apportioned to each item. Walker, 824 S.W.2d at 187; Click v. Seale, 519 S.W.2d 913, 918 (Tex.Civ.App.—Austin 1975); Chapman, 396 S.W.2d at 147. If there is a single assent to a whole transaction involving several things, a contract is entire. If there is a separate assent to each of the several things involved, it is divisible. Walker, 824 S.W.2d at 187; St. John, 638 S.W.2d at 243-44. However, the fact that two agreements are embraced in one instrument will not make the writing entire and indivisible. Click, 519 S.W.2d at 918. In the end, the intent of the parties, as demonstrated by the language used, is controlling. Blackstock v. Gribble, 312 S.W.2d 289, 292-93 (Tex.Civ.App.—Eastland 1958); Read v. Gibson & Johnson, 12 S.W.2d 620, 622 (Tex.Civ.App—Eastland 1928). As discussed above, the bankruptcy court did not clearly err in finding that the Agreement was divisible. The language and the subject matter of the Agreement suggest the parties intended a divisible contract because of the clear distinction between the initial services and the continuing services. In addition, the price is apportioned between the" }, { "docid": "18513866", "title": "", "text": "contract, the other party is discharged from his obligation to perform), writ denied, 787 S.W.2d 38 (Tex.1990). Stewart Title maintains that the Reproduction Rights are enforceable despite the trustee’s rejection. Stewart Title argues that the Lease consisted of two severable agreements: (1) an executory agreement regarding the use of the records and other materials contained in the abstract plant (the “Use Rights”); and (2) an executed agreement regarding the Reproduction Rights. Stewart Title contends that the Reproduction Rights vested in the lessee on the effective date of the Lease and thereafter were an enforceable and assignable asset. According to Stewart Title, be cause the Reproduction Rights required no further performance on the part of the lessee, the bankruptcy trustee’s § 365 rejection pertained only to the Use Rights — the execu-tory portion of the Lease. Therefore, the first question we must answer is whether the Lease was a severable contract such that the fulfilled portion would remain enforceable, notwithstanding the bankruptcy trustee’s rejection. A. Severability A severable contract “includes two or more promises which can be acted on separately such that the failure to perform one promise does not necessarily put the promisor in breach of the entire agreement.” Black’s Law Dictionary 1373-74 (6th ed. 1990). Black’s Law Dictionary defines divisible and severable contracts in similar terms. Under Texas law, a contract is divisible, or severable, when one party’s performance consists of more than one “distinct and separate item[ ] and the price paid by the other party is apportioned to each item.” In re Ferguson, 183 B.R. 122, 124 (Bankr.N.D.Tex.1995) (quoting Johnson v. Walker, 824 S.W.2d 184, 187 (Tex.App.—Fort Worth 1991, no writ)). No one test or rule of law can be used to ascertain whether a contract is divisible or indivisible. Johnson, 824 5.W.2d at 187. “Determination of the issue depends primarily on the intention of the parties, the subject matter of the agreement, and the conduct of the parties.” Id. (citations omitted). The intent of the parties is the principal determinant of divisibility. Lake LBJ Mun. Util. Dist. v. Coulson, 771 S.W.2d 145, 153 (Tex.App.—Austin 1988), rev’d" }, { "docid": "22827661", "title": "", "text": "have paid Reilly that $2,054 million on one fixed date, however, the district court should award interest from a date to be determined in accordance with New York law. See N.Y. C.P.L.R. § 5001(b) (McKinney Supp.1999) (“[w]here ... damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all the damages from a single reasonable intermediate date”). IV. 199k Damages NatWest next contends that Judge Conti erred in giving the jury a verdict form asking for a “lump-sum” damages amount for both 1994 and 1995. According to NatWest, Reilly’s contract was divisible because it was expressly apportioned into two separate employment periods — 1994 and 1995 — with separate compensation terms for each year. Pointing out that the liability jury found that Reil ly’s contract was breached in 1995, Nat-West claims that the damages jury should never have been allowed to consider contract damages for 1994. This is so, according to NatWest, because a plaintiff cannot recover damages under a divisible contract “for the parts completed before the contract is breached.” NatWest misapprehends the nature of a divisible contract. A divisible contract “differs from other contracts only in the respect that on performance by one party of each of its successive divisions, the other party becomes liable for his or her performance of that division.” 22 N.Y.Jur.2d, Contracts § 269 (1996) (citing Rhine v. New York Life Ins. Co., 248 A.D. 120, 289 N.Y.S. 117, 123 (1st Dep’t), aff'd. 273 N.Y. 1, 6 N.E.2d 74 (N.Y.1936)). Thus, while an employee may sometimes be barred from recovering under that part of a divisible contract that he or she has fully performed, this is so only if the employee has “received in full the apportioned equivalent of [the employer’s] performance.” 5 Corbin on Contracts, § 1111, at 591 (emphasis added). Otherwise, as in any breach of contract case, “the employee has a right to the payment of the wage installment; and the duty of the employer to pay that amount is a contract debt.” Id. § 1095, at 515; See, e.g.," }, { "docid": "18758956", "title": "", "text": "individual item as a separate unit. This Court believes that “determination of whether a transaction constitutes one contract or several contracts is based on a facts and circumstances approach. What courts hope to determine is the intentions of the parties.” Ritchey, 84 B.R. at 479, citing Williston on Contracts (3rd ed.) § 863; 17 Am. Jur.2d Contracts § 325. After weighing the testimony, considering the depositions, and reviewing the documents provided as exhibits by the parties hereto, this Court does not believe that credible evidence has been presented that would substantiate the ability of the Debt- or to consider the BOS Contract eleven different contracts, each capable of assumption or rejection under § 365. The Navy presented evidence, and the Court has considered the testimony and credibility of the Navy’s witnesses, that the contract, although comprised of eleven functions, was a single, indivisible agreement, with no appropriate way to segregate the functions into independent, separately assumable contracts. Under the tests and cases cited above, and in accordance with Ohio law, it is the determination of this Court that the parties intended to consider the BOS Contract as a single, interdependent contract, not as eleven divisible contracts. It appears undisputable that the parties reached the agreement regarding the various items as a whole, as opposed to reaching an agreement regarding each item individually as a unit. Although there are estimated price breakdowns, the testimony indicated that these breakdowns were nothing more than estimates to assure that the contractor was realistically bidding on the contract as a whole. Such breakdown was not intended to create a steadfast pricing for the individual functions to be performed under the BOS Contract. Applying the Holly’s and Gardinier test to this case, the different contract functions, in some instances, are arguably of a “differing nature and purpose” sufficient to allow independent assumption and rejection. The consideration for the functions was, however, not separate and distinct to the extent that the bankruptcy court could compel the Navy, under the purpose and form of its contract, to accept the individually apportioned cost items of the overall contract for" }, { "docid": "5498470", "title": "", "text": "*» Later Copeland reported to Billue that he had alternative proposals (1) Anderson would agree to take $333,000 and the Reeves County leases, and pay 43% of whatever was to be paid to Ellis including court costs, or (2) $295,000 which would be reduced to $265,000 if the Ellis case was lost. Billue said: “It’s a deal,” and accepted the second alternative. The only legal services to be performed by the Anderson firm was to assist in the Ellis suit. The agreement to pay the $295,-000 was one of a number of promises made by the parties as a complete settlement for a division of their jointly own ed properties. It was a single part of a single agreement which could not be rescinded alone. United States v. Bethlehem Steel Corp., 315 U.S. 289, 62 S.Ct. 581, 86 L.Ed. 855; Franklin v. American Nat. Ins. Co., 10 Cir., 135 F.2d 531; Alexander v. Phillips Petroleum Co., 10 Cir., 130 F.2d 593. The contracts being indivisible, Billue and the corporation must affirm or disaffirm it in its entirety. They may not disaffirm as to their contractual obligations and retain the benefits they have received. Wilhelm v. Consolidated Oil Co., 10 Cir., 84 F.2d 739; Paskvan v. Mesich, 9 Cir., 227 F.2d 646,16 Alaska 1; Lummus Co. v. Commonwealth Oil Ref. Co., 1 Cir., 280 F.2d 915, 91 A.L.R.2d 912, cert. denied 364 U.S. 911, 81 S. Ct. 274, 5 L.Ed.2d 225. If a party to a contract remains silent as to a claimed invalidity of a contract and continues to treat property as his own which was the subject of the contract, he will be deemed to have waived his objection and will be bound by the instrument. Morse v. Kogle, 162 Kan. 558, 178 P.2d 275; Lichter v. Goss, 7 Cir., 232 F.2d 715; Jack Mann Chevrolet Co. v. Associates Inv. Co., 6 Cir., 125 F.2d 778; American Mannex Corp. v. Huffstutler, 5 Cir., 329 F.2d 449. The evidence is without conflict that the relationship of attorney and client had existed between Billue and Anderson over a period of years," }, { "docid": "21511786", "title": "", "text": "N.E.2d 524, 539 (2000) (“In determining the intention of the parties, useful factors include whether performance by one party consists of distinct and separate items and whether the price is apportioned for each item of performance.”); Keeshin v. Levin, 31 Ill.App.3d 790, 334 N.E.2d 898, 905 (1975) (stating that “[i]f a part to be performed by one party consists of several distinct and separate items ... and the prices to be paid by the other is apportioned to each item to be performed, or if left to be implied by law, such a contract will generally be held to be severable; and the same rule holds where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, although the latter is in its nature single and entire.”) (quoting Amsler v. Bruner, 173 Ill.App. 337, 345 (1912)). The Court disagrees with the conclusion of the Debtors and the Committee. The ability to apportion the consideration to different parts of the contract is one factor to be considered in determining the intent of the parties but it is not conclusive. There are many cases where, although the payment is apportioned among many items, the Illinois courts have still found an integrated, non-severable con tract. See, e.g., City of Chicago v. Sexton, 115 Ill. 230, 2 N.E. 263, 264 (1885) (holding that contract to furnish the ironworks for a multi-story building was not divisible even though the consideration was “made up by stating the estimated cost of each story separately, and the roof, and then adding the whole together.”); Meredith v. Knapp, 62 Ill.App.2d 422, 211 N.E.2d 151, 153 (1965) (holding that double indemnity coverage in insurance policy was not separate contract even though a separate premium was charged for it). The Seventh Circuit has noted that the intention of the parties is critical and “[e]ven if the parties entered a multi-part contract, that contract cannot be severed after the fact if the parties entered it ‘as a single whole, so that there would have been no bargain whatever, if any promise or set" }, { "docid": "23363214", "title": "", "text": "this award urging that it was improper to allow such interest in a suit for unliquidated damages. The general rule is that when the damages resulting from a breach of contract are ascertainable with mathematical precision prejudgment interest is awardable as of right. If, however, the claim is not for a liquidated sum but is nonetheless pecuniary rather than personal in its nature many courts will add prejudgment interest to the amount which they find would have been just compensation at the time of the breach, when in the exercise of their discretion it appears necessary to do so in order to arrive at fair compensation at the time of judgment. Miller v. Robertson, 1924, 266 U.S. 243, 258, 45 S.Ct. 73, 69 L.Ed. 265; United States v. Bethlehem Steel Corp., 3 Cir. 1940, 113 F.2d 301, 308, aff’d, 1942, 315 U.S. 289, 62 S.Ct. 581, 86 L.Ed. 855; Cold Metal Process Co. v. United Engineering & Foundry Co., 3 Cir. 1956, 235 F.2d 224, 231; Marrazzo v. Scranton Nehi Bottling Co., 1970, 438 Pa. 72, 263 A.2d 336; Restatement of Contracts § 337; McCormick on Damages, 1935, 356. We think that this is an appropriate rule for discretionary application as a matter of federal law in actions brought under section 301 of the Labor Management Relations Act for breaches of labor agreements and that the district court did not err in its discretionary application of the rule in this case. The judgment entered by the district court in these consolidated cases will be modified by awarding to the plaintiff Daniels against the defendants Teamsters International Union and its Local 377 damages in the sum of $366,786.79 plus interest thereon at the rate of 6% per annum from September 25, 1968 to June 10, 1974, the date of judgment, and to the plaintiff Eazor against the' defendants Teamsters International Union and its Local 249 damages in the sum of $665,793.65 plus interest thereon at the rate of 6% per annum from September 25, 1968 to June 10, 1974, the date of judgment, in each case with costs. As so modified" }, { "docid": "8895363", "title": "", "text": "entire license protection, at five cents per unit, for the manufacture and sale of every device which, but for the license, would have infringed any of the patents. In the absence of any such provision for the allocation of the royalties the failure of the licensee for the time being to ma.ke and sell anything covered by more than one patent does not alter the fact that the royalties paid were not only for the protection needed presently but for the assurance of the protection as to the other patents whenever the licensee might need it. It agreed to pay the price it did to obtain freedom to do business for the life of the license without infringing any of the patents covered by it and, whether it would have paid that price for anything less is but a matter of conjecture. The privilege covered the group of patents as a whole and to measure the price for that entire privilege at a flat rate in cents per unit of a product as to which any part of the privilege was exercised was permissible. Cf. Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 70 S.Ct. 894, 94,L.Ed. 1312. Their intent in this respect , . , , . .. is apparen rom t e anguage o t e icense and that intent controls to prevent any judicial division or allocation of royalties to a particular patent or patents on the basis of whether one patent or more covered devices on which royalties are payable. Cf. Cosden Oil Co. v. Scarborough, 5 Cir., 55 F.2d 634; Traiman v. Rappaport, 3 Cir., 41 F.2d 336, 71 A.L.R. 475 Any seeming harshness resulting from this construction of the license agreement follows not from anything inherent in such a construction, or in the license itself, but because of the prior contract between Padua and Parissi. On the facts of this record that seems to have been an improvident one on the part of Parissi though, if all the circumstances appeared, they might show that it was not. However that may be," }, { "docid": "23393780", "title": "", "text": "in exhaustive detail. In May 1955 the Division Engineer put out a detailed Conferees Report on Review of Claim which concluded with the finding that the plaintiff was entitled to be paid $114,673.28 (after eliminating a “legal dispute” item of $33,421.75 which plaintiff alleged in its petition but subsequently abandoned) more than it had been paid for Modifications 12 and 13, instead of the adjusted figure of $266,312.10 claimed by the plaintiff. The following conclusions were among those agreed to by the conferees: (1) A forty-hour work week was used from the start of construction through January 1953. (2) A forty-eight hour work week or more was used from February 1953 through to completion. (3) There was approximately a 300 percent turnover in labor. (4) There was no delay in construction due to late delivery of materials or equipment. (5) The agreement on the amount of direct labor involved in the disputed items was increased by one-third to provide for lost time, on the basis of two hours lost time for each 8-hour work day. (6) An amount of 16% percent was included in the estimates for overtime premium payment, based on an average week of 48 hours with premium payment for 8 hours. (Y) Allowances for overhead included, among other matters, costs of supervision, tools, equipment and supplies, and equipment operators. Although the Conferees Report was not signed by the plaintiff, the circumstances surrounding its preparation and the subsequent acceptance by plaintiff of its recommended benefits constitute a constructive stipulation of the report contents. (d) The Conferees Report was sent to the contracting officer by the Division Engineer. On August 25, 1955, the contracting officer, after a consideration of the report, decided that he was not justified in changing his previous decision in respects relevant to the present issues, and recommended that the Conferees Report should be sent to the Engineers Claims and Appeals Board to assist it in arriving at a decision on the still pending appeal. In a separate letter of the same date to the Division Engineer the contracting officer advised, however, that he would have" }, { "docid": "20285559", "title": "", "text": "to indicate that the contract is entire rather than divisible in the situation where it is alleged that a default under one part of a contract does not excuse performance of the other party under another part on the ground of divisibility.” Id. “Whether a contract is divisible or entire is a question of intent which must be determined from the terms and subject matter of the contract, together with any pertinent explanatory circumstances.” Equitable Trust Co. v. Delaware Trust Co., 30 Del.Ch. 118, 128, 54 A.2d 733, 738 (1947). See Orenstein v. Kahn, 119 A. at 445. As the Supreme Court of Delaware stated almost a century ago, “In determining whether a contract is divisible or entire, the essential question ... is: ‘Did the parties give a single assent to the whole transaction, or did they assent separately to several things?’ ” Orenstein v. Kahn, 119 A. at 446 (quoting 2 Williston on Contracts, § 863). The Supply Agreement at issue is not divisible. While, at the moment, the Defendants are still performing a portion of the Supply Agreement and not performing another, the Court is not convinced that this fact shows that the contract is divisible or severable. The Supply Agreement is a complex mesh of heavily negotiated obligations imposed on each party. Each party had to weigh the combined benefit of the provisions in its favor against the combined detriment of the obligations imposed on it. There is no sound way for the Court to determine which obligations and benefits the parties found to weigh the most heavily in one direction or another. To grant the Defendants the remedy they seek, the Court would have to find the obligation to supply obturators to Guidance was severable from the remainder of the Supply Agreement to the point that it could be considered a separate contract. The Court, however, cannot on the record before it determine whether Guidance or the Defendants would have entered into the Supply Agreement if it did not provide for the supply and purchase of obturators, nor whether either party would agree to enter a" } ]

[ { "docid": "13813970", "title": "", "text": "case and reprosecute the defendant. Nor is it permitted to achieve by indirection what it is not permitted to do directly; and thus it cannot engage in trial misconduct that is intended to and does precipitate a successful motion for mistrial by the defendant. Oregon v. Kennedy, 456 U.S. 667, 676, 679, 102 S.Ct. 2083, 2091-92, 2091, 72 L.Ed.2d 416 (1982). The requirement of intent is critical, and easily misunderstood. The fact that the government blunders at trial and the blunder precipitates a successful motion for a mistrial does not bar a retrial. Id. at 674-76, 102 S.Ct. at 2088-90; Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1972); United States v. Powell, 982 F.2d 1422, 1429 (10th Cir.1992); United States v. Perez Sanchez, 806 F.2d 7 (1st Cir.1986). Yet the blunder will almost always be intentional — the product of a deliberate action, not of a mere slip of the tongue. A prosecutor who in closing argument comments improperly on the defendant’s failure to have taken the stand, thus precipitating a mistrial or a reversal on appeal, is no doubt speaking deliberately, though his judgment may be fogged by the heat of combat. But unless he is trying to abort the trial, his misconduct will not bar a retrial. It doesn’t even matter that he knows he is acting improperly, provided that his aim is to get a conviction. Oregon v. Kennedy, supra, 456 U.S. at 675-76, 102 S.Ct. at 2089-90. The only relevant intent is intent to terminate the trial, not intent to prevail at this trial by impermissible means. Well, but does this mean that any time a mistrial is ordered because of some answer to a question put to a witness by the prosecutor, and the defendant moves for an acquittal on the ground that retrial is barred by the double jeopardy clause, the prosecutor must be put on the stand and interrogated under oath by defense counsel concerning the prosecutor’s intentions in asking the question that elicited the fatal answer? In United States v. Jozwiak, 954 F.2d 458 (7th Cir.1992), we" } ]

[ { "docid": "8555988", "title": "", "text": "497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). If Pavlovic’s perspective were correct, mistrials caused by prosecutorial or judicial errors could never be followed by second trials, because it is never manifestly necessary to make a mistake. Yet Somerville held that a prosecutor’s blunder in drafting an indictment supplied manifest necessity for a mistrial. See also Lee v. United States, 432 U.S. 23, 33-34, 97 S.Ct. 2141, 2147-48, 53 L.Ed.2d 80 (1977). Often the blunder escapes notice until the trial is over, yet a reversal may be followed by a second trial. See Burks v. United States, 437 U.S. 1, 12-15, 98 S.Ct. 2141, 2147-49, 57 L.Ed.2d 1 (1978). If the proceeding is doomed to be reversed, it may be stopped short. The other reply is that “manifest necessity” is unnecessary when the defendant moves for a mistrial. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Pavlovic moved for severance and mistrial too many times to count. The court finally gave him the relief he sought so avidly, and the double jeopardy clause does not prevent retrial. Only when “the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial” (Oregon v. Kennedy, 456 U.S. at 679, 102 S.Ct. at 2091) does the “manifest necessity” standard come into play. Pavlovic does not contend that Judge Crabb or the prosecutor was baiting him into moving for a mistrial or sabotaging his defense until there was no other alternative. Their conduct was entirely above board, and an argument that they were trying to undermine a successful defense in order to have a better crack the second time would be ludicrous. Pavlovic’s motions for mistrial started at the beginning of trial. Pavlovic replies that he hadn’t moved for mistrial lately, so the severance and mistrial of December 6 must be assessed as one on the court’s own motion. The premise is true, but the conclusion does not follow. Pavlovic had been insisting on" }, { "docid": "3402869", "title": "", "text": "At the second trial, it presented expert testimony that agreed with the government’s expert report insofar as it stated that Exhibit 1 was a copy of a document identical to Exhibit 1A with the “Davy Pic” notation removed. The defense expert concluded, however, that the notation was removed with correction tape on the kind of typewriter on which the invoice itself was typed. Both experts thus agreed that the original of Exhibit 1 was altered but differed as to whether it was Jefferies or someone at GAF who had made the change. On March 23, the district court declared another mistrial after the jury deadlocked. A third trial has been scheduled for November 6, 1989. DISCUSSION On appeal, two claims are raised. The first is that the government’s attempt to use Lesnevich’s testimony after the voir dire of Jefferies forced the defense to move for a mistrial and that a retrial would subject the defendants to double jeopardy. The second is that the government’s negotiating posture after the district court indicated that it would grant the requested mistrial constituted an unconstitutional condition. We turn to the first claim. The double jeopardy clause of the Fifth Amendment protects criminal defendants from being prosecuted repeatedly for the same offense. See United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). Generally, however, the principles of double jeopardy do not bar a second prosecution following a mistrial declared at the request of the defendant. See United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), however, the Supreme Court endorsed an exception to this general rule. In Kennedy, the Court stated that a defendant who has successfully moved for a mistrial on grounds of prosecutorial misconduct may successfully claim double jeopardy as a bar to retrial, but “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial.” 456 U.S. at 676, 102 S.Ct. at 2089. The Kennedy exception is" }, { "docid": "23176033", "title": "", "text": "offense. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). Where the trial is terminated over the objection of the defendant the test for lifting the double jeopardy bar to a second trial is the “manifest necessity” test first set out by the Supreme Court in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824). The usual situation meeting this standard is the hung jury. But in the case of a mistrial declared at the request of a defendant, “there is a narrow exception to the rule that the Double Jeopardy Clause is no bar to retrial.” Oregon v. Kennedy, 456 U.S. 667, 673, 102 S.Ct. 2083, 2088, 72 L.Ed.2d 416 (1982) (citations omitted). A defendant’s motion for a mistrial constitutes “a deliberate election on his part to forego his valued right to have his guilt or innocence determined before the first trier of fact.” United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978). If prosecutorial error has occurred which warrants a mistrial, “[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error,” United States v. Dinitz, 424 U.S. at 609, 96 S.Ct. at 1080. Thus, only in “those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial,” Oregon v. Kennedy, 456 U.S. at 679, 102 S.Ct. at 2091, can the Double Jeopardy Clause bar the second trial. Nowhere in this record can we find that the prosecutor intended to cause a mistrial and subvert the protection afforded to these defendants by the Double Jeopardy Clause. The government gained no advantage by the mistrial since the evidence adduced at the second trial was the same as that used in the first trial. See Arizona v. Washington, 434 U.S. 497, 508, 98 S.Ct. 824, 831, 54 L.Ed.2d 717 (1978); United States v. Opager, 616 F.2d 231, 234 (5th Cir.1980)." }, { "docid": "4448316", "title": "", "text": "prosecutorial negligence or mistake.” Brief of Aplt., Att. D at 1. Mr. Valadez-Camarena was subsequently tried and convicted. II. “The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (footnote omitted). Although the Double Jeopardy Clause usually bars retrial where the prosecution moves for a mistrial over the objection of the defense, in select circumstances it also prevents retrial where the first trial ended at the defendant’s request. See id. at 672-73, 102 S.Ct. 2083. When a prosecutor “ ‘goadfs] the [defendant] into requesting mistrial’ ... the defendant’s valued right to complete his trial before the first jury would be a hollow shell” were retrial permissible. Id. at 673, 102 S.Ct. 2083 (quoting United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)); United States v. McAleer, 138 F.3d 852, 855-56 (10th Cir.1998). Therefore, if the government intended to provoke the defendant into moving for a mistrial, retrial is barred. See Kennedy, 456 U.S. at 679, 102 S.Ct. 2083. The Double Jeopardy Clause applies only where the prosecution intentionally goads the defense, not where the prosecution is mistaken, careless, or even harassing. See United States v. Powell, 982 F.2d 1422, 1429 (10th Cir.1992); United States v. Poe, 713 F.2d 579, 583 (10th Cir.1983). Some confusion exists in this circuit over the appropriate standard by which to review the district court’s decision in a double jeopardy goading case. Mr. Valadez-Camarena argues that we should apply a de novo standard, while the government contends that the abuse of discretion standard is proper. Both parties cite cases from this circuit as support for their positions. The Supreme Court has made clear, however, that determining whether a prosecutor intended to goad the defense “merely calls for the court to make a finding of fact.” Kennedy, 456 U.S. at 675, 102 S.Ct. 2083. Such findings are reviewed for clear error. See, e.g., United States v. Johnson, 55 F.3d 976, 978 (4th Cir.1995); United States v. Ivory, 29" }, { "docid": "9970862", "title": "", "text": "exhausted and, if so, whether it was properly raised in Tinsley’s federal habeas petition. In the event the claim has been exhausted and preserved, the court should attempt to expand the record to include the prosecutor’s opening statement, should attempt to determine whether Hellings indeed did not make a closing argument, make any other pertinent fact findings and reach its own conclusion on the merits of this claim. B. Tinsley next claims that his second trial violated his rights under the Double Jeopardy Clause of the Fifth Amendment. We disagree. The Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. When a court declares a mistrial without the defendant’s consent, re-prosecution violates the Double Jeopardy Clause unless “there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated.” United States v. Perez, 22 U.S. (9 Wheat) 579, 580, 6 L.Ed. 165 (1824); see also Arizona v. Washington, 434 U.S. 497, 500, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). When a court declares a mistrial at the behest of the defendant, however, “the ‘manifest necessity’ standard has no place in the application of the Double Jeopardy Clause.” Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Rather, if the defendant “requested a mistrial ..., there would be no doubt that if he had been successful, the Government would not have been barred from retrying him,” United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964) — with one exception. Namely, when “bad-faith conduct by [a] judge or prosecutor” forces a defendant to move for a mistrial, re-prosecution is barred even though the defendant consented to the mistrial. United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). How do these rules apply here? If Tins-ley had not moved for a mistrial, the proper question would be whether the mistrial was a “manifest necessity,” not whether the prosecutor acted in bad faith" }, { "docid": "18738387", "title": "", "text": "69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). Thus, the double jeopardy clause does not bar all reprosecution. A defendant who consents to the termination of a first trial may again be put in jeopardy for the same offense, unless the conduct of the prosecutor or judge was intended to provoke the mistrial. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Even when a defendant does not consent, he may be retried if there was “manifest necessity” that the first trial be terminated. See United States v. Dinitz, 424 U.S. 600, 606-7, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976); Clauser v. McCevers, 731 F.2d 423, 426 (7th Cir.1984). A. The state alleges that Lovinger explicitly consented to the mistrial by making a motion earlier in the proceedings. The state further argues that Lovinger implicitly consented to the mistrial by failing to object during the trial .judge’s declaration. We reject both arguments. The defense moved for a mistrial during officer Hutchings’ testimony. We hold that this motion did not constitute explicit consent to a mistrial. First, the motion was-merely perfunctory. Defense counsel moved for a mistrial only after the judge told him that any mistrial motion he made would be denied; his resulting motion was denied as promised. Second, the judge’s eventual mistrial declaration was not based on allegedly improper conversations between officer Hutchings and the prosecutor — the only grounds for Loving-er’s only mistrial motion. When the judge declared a mistrial later in the proceedings, he identified four reasons for his dissatisfaction with the trial: 1) the state’s delay in bringing the case to trial; 2) the lack of discovery allowed the defense; 3) the state’s failure to comply with the court’s discovery orders; and 4) the prosecutor’s conversations with witness Bowden. The judge did not mention Lovinger’s earlier objection and mistrial motion which were made during Hutchings’ testimony. In any case, in light of the state’s repeated foibles and the trial judge’s resulting displeasure with the prosecution of the case, Loving-er’s assessment of his chances of acquittal may well have changed in the" }, { "docid": "790302", "title": "", "text": "to presume that Justice Conable failed to take applicable New York waiver law into account when he rejected petitioner’s application. Thus, petitioner’s double jeopardy claim was not waived, and is properly before this court for resolution. PROSECUTORIAL MISCONDUCT-BASED DOUBLE JEOPARDY CLAIM In United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), the seminal case relied on by Petrucelli, the Supreme Court affirmed that a mistrial granted at a criminal defendant’s behest because of prosecutorial or judicial error will normally not foreclose a second trial. Id. at 607-09, 96 S.Ct. at 1079-80. The Court nevertheless pronounced that where a defendant’s motion for mistrial was intentionally provoked by the “bad faith conduct” of the judge or prosecutor, a retrial is proscribed by the Double Jeopardy Clause of the fifth amendment. Id. at 611; Mitchell v. Smith, supra at 1011. This doctrine was recently refined in Oregon v. Kennedy, -U.S. —, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), handed down after the instant action was submitted for decision. The Supreme Court explained that the double jeopardy bar can be interposed by a criminal defendant who has successfully moved for a mistrial only where “the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Id. at-, 102 S.Ct. at 2091. Petrucelli, of course, is on a somewhat different footing before this court than the criminal defendants in Dinitz and its progeny, including Oregon v. Kennedy. In that line of cases, mistrials were granted by the trial court. Here, Petrucelli’s frequent motions for a mistrial based on the prosecutor’s deplorable behavior were all denied. For purposes of double jeopardy analysis, however, I am convinced that reversal of a conviction for deliberately offensive prosecutorial misconduct warrants the same relief as a mistrial granted on that ground. There is no reason why a criminal defendant whose timely request for a mistrial is granted should be placed in a better position than a defendant whose request is wrongfully denied. See Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141," }, { "docid": "8644898", "title": "", "text": "retrial is barred because, for double jeopardy purposes, this is equivalent to a judgment of acquittal. See Lockhart, 488 U.S. at 39, 109 S.Ct. at 290 (citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)). One of the main and most-frequently cited rationales behind the protections in the Double Jeopardy Clause is that a defendant has the right to have his trial completed by the first jury empaneled to try him. Kennedy, 456 U.S. at 673, 102 S.Ct. at 2088. Flowing from that rationale is the rule that if a defendant requests a mistrial, he gives up his right to a verdict by the jury then empaneled, and double jeopardy does not bar his retrial. United States v. Higgins, 75 F.3d 332, 333 (7th Cir.1996) (citing United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)). However, in Oregon v. Kennedy, the Supreme Court created an exception to this rule when it held that the Double Jeopardy Clause does bar retrial in the limited situation where the government engages in prosecutorial misconduct which gives rise to a successful motion for mistrial, and such misconduct “was intended to provoke the defendant into moving for a mistrial.” Kennedy, 456 U.S. at 679, 102 S.Ct. at 2091. The reason for this, according to Kennedy, is that such misconduct prejudices the defendant’s interest in having his trial completed by the jury empaneled to try him. Id. at 673, 102 S.Ct. at 2088. We explained this in United States v. Higgins: If the prosecutor deliberately introduces error in order to provoke the defendant into moving for a mistrial and to “rescue” a trial going badly, “the Constitution treats matters as if the mistrial had been declared on the prosecutor’s initiative.” Higgins, 75 F.3d at 333 (citing Kennedy, 456 U.S. at 679, 102 S.Ct. at 2091; United States v. Oseni, 996 F.2d 186 (7th Cir.1993); United States v. Jozwiak, 954 F.2d 458 (7th Cir.1992)). If that is the case, double jeopardy will bar the defendant from being retried. Although Kennedy involved a situation in which the" }, { "docid": "3402870", "title": "", "text": "the requested mistrial constituted an unconstitutional condition. We turn to the first claim. The double jeopardy clause of the Fifth Amendment protects criminal defendants from being prosecuted repeatedly for the same offense. See United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). Generally, however, the principles of double jeopardy do not bar a second prosecution following a mistrial declared at the request of the defendant. See United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), however, the Supreme Court endorsed an exception to this general rule. In Kennedy, the Court stated that a defendant who has successfully moved for a mistrial on grounds of prosecutorial misconduct may successfully claim double jeopardy as a bar to retrial, but “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial.” 456 U.S. at 676, 102 S.Ct. at 2089. The Kennedy exception is thus intended to prevent the prosecution from forcing a mistrial when things are going badly for it, in the hope of improving its position in a new trial. The Court emphasized the narrowness of the exception, stating that harassing or overreaching conduct on the part of the prosecutor that justifies a mistrial nevertheless “does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Id. at 676, 102 S.Ct. at 2089. In Kennedy itself, for instance, the Court held that double jeopardy did not bar a retrial where the prosecutor asked an expert witness whether the reason he had never done business with the defendant was that the defendant was “a crook.” Finding that the prosecutor had not intended to cause a mistrial, the Court rejected the defendant’s double jeopardy claim. The circumstances here in no way constitute the kind of misconduct needed to sustain a double jeopardy claim under Kennedy. There is simply no evidence that the prosecutor here “intended to ‘goad’ the" }, { "docid": "18738386", "title": "", "text": "clause of the fifth amendment, applicable to the states through the fourteenth amendment, Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 2058, 23 L.Ed.2d 707 (1969), protects at least two important interests. United States v. Rich, 589 F.2d 1025, 1028 (10th Cir.1978). First, individuals should be spared the emotional and financial hardship of successive prosecutions at the pow erful hand of the State. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Second, defendants must be protected from the unfairness of a mistrial declaration designed to give the government a second chance to convict when the first is going badly. Gori v. United States, 367 U.S. 364, 369, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901 (1961). These concerns, implicated by both bench and jury trials, United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion), must be balanced against “the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). Thus, the double jeopardy clause does not bar all reprosecution. A defendant who consents to the termination of a first trial may again be put in jeopardy for the same offense, unless the conduct of the prosecutor or judge was intended to provoke the mistrial. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Even when a defendant does not consent, he may be retried if there was “manifest necessity” that the first trial be terminated. See United States v. Dinitz, 424 U.S. 600, 606-7, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976); Clauser v. McCevers, 731 F.2d 423, 426 (7th Cir.1984). A. The state alleges that Lovinger explicitly consented to the mistrial by making a motion earlier in the proceedings. The state further argues that Lovinger implicitly consented to the mistrial by failing to object during the trial .judge’s declaration. We reject both arguments. The defense moved for a mistrial during officer Hutchings’ testimony. We hold that this motion did not constitute" }, { "docid": "10701623", "title": "", "text": "stated he didn’t. Then we came back to our office ... Before the agent could say more, Harrison’s lawyer objected. At defendants’ request, the district judge declared a mistrial, concluding that the agent’s statement was impermissible under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and United States v. Hale, 422 U.S. 171. 95 S.Ct. 2133. 45 L.Ed.2d 99 (1975). Harrison and Potts then argued that a second trial would violate the fifth amendment’s double jeopardy clause. Defendants who request a mistrial relinquish their entitlement to a verdict by the jury then impaneled and may not use the double jeopardy clause to avoid a second trial. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). But if the prosecutor deliberately introduces error in order to provoke a mistrial request and rescue a trial going badly, the Constitution treats matters as if the mistrial had been declared on the prosecutor’s initiative. See Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982); United States v. Oseni, 996 F.2d 186 (7th Cir.1993); United States v. Jozwiak, 954 F.2d 458 (7th Cir.1992). The district judge held a hearing, received testimony from the agent, and concluded that the statement had not been designed to elicit a mistrial request. The second trial followed promptly. Defendants insist that retrial should not have occurred because the witness deliberately misbehaved; the United States relies on the district judge’s findings about the agent’s (and the prosecutor’s) motives. We need not resolve the dispute, because there was no reason to end the first trial and it is therefore impossible to treat the agent’s answer as a maneuver designed to yield a second, and better, shot at a conviction. Hale and Doyle do not forbid all mention at trial of Miranda warnings and the defendant’s response to them. They establish instead that silence following the receipt of Miranda warnings may not be used against a defendant. Silence may be no more than a response to the advice about one’s rights— and it is inappropriate to promise" }, { "docid": "8815781", "title": "", "text": "52 L.Ed.2d 651 (1977), the defendants have appealed, asking us to block a second trial. The double jeopardy clause gives the defendant a right to “get a verdict if he wants one and keep it if he gets it”. United States ex rel. Young v. Lane, 768 F.2d 834, 837 (7th Cir.1985). A right to obtain implies a right to relinquish. Defendants may choose whether to proceed with the first jury; if they elect not to, they have not been “deprived” of any entitlement. To honor a choice is not to dishonor the underlying rule. The alternative to honoring the defendant’s choice is forcing the parties to verdict in the first trial, then reversing the conviction and holding another trial — something neither side wants. Dinitz recognizes that a motion for a mistrial is not an invariable sign of the accused’s choice to forego decision by the first tribunal. 424 U.S. at 611, 96 S.Ct. at 1081; see also United States v. DiFrances-co, 449 U.S. 117, 130, 101 S.Ct. 426, 433-34, 66 L.Ed.2d 328 (1980); United States v. Jorn 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion); United States v. Tateo, 377 U.S. 463, 468 n. 3, 84 S.Ct. 1587, 1590 n. 3, 12 L.Ed.2d 448 (1964). Perhaps things have been going well for the defense but the prosecutor does something exceedingly prejudicial, so much so that the balance suddenly (and improperly) shifts in the prosecutor’s favor. Even though the defense then moves for a mistrial, termination of the trial is properly attributed to the prosecutor’s conniving rather than to the accused’s preference. In Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982), the Court held that, if “the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial”, a second trial is impermissible. So our defendants asked for a hearing at which they could probe the prosecutor’s intent, including “the actual circumstances surrounding the making of the statements by [the prosecutor] and his being designated to" }, { "docid": "14430395", "title": "", "text": "that the defendant did not have knowledge of the contents of the packages she received. This is not enough to estop the consideration of this issue in the second trial. The decision of the district court is Affirmed. . These yellow slips were the second set of slips placed in defendant’s mail box. The first set of slips were recovered from defendant’s purse after her arrest. . Both packages were addressed to Esperanza Aguilar, P.O. Box 5739. Box 5739 was rented to Esperanza Aguilar. . See Tr. Vol. XI pp. 20-21. .According to defendant-appellant, the circumstances surrounding her arrest and detention were the subject of several pretrial motions before the district court. While those issues are not presented in the instant appeal, which addresses double jeopardy issues alone, the defendant has indicated that she does not wish to waive her right to raise these irregularities on a subsequent appeal. . See also United States v. Dinitz, 424 U.S. at 608, 96 S.Ct. at 1080 (Distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant’s request, or with his/her consent, is wholly consistent with the protection of the double jeopardy clause.); United States v. Crotwell, 896 F.2d 437, 439 (10th Cir.1990) (When a mistrial has been declared, the double jeopardy clause precludes a retrial of the defendant unless the defendant consented to the mistrial, see United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), or unless the mistrial was compelled by “manifest necessity.”) (citations omitted); Lovinger v. Circuit Court of the 19th Jud. Circuit, 845 F.2d 739, 743 (7th Cir.1988) (A defendant who consents to the termination of a first trial may again be put in jeopardy for the same offense, unless the conduct of the prosecutor or judge was intended to provoke the mistrial.) (citing Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)); United States v. Puleo, 817 F.2d 702, 705 (11th Cir.), cert. denied, 484 U.S. 978, 108 S.Ct. 491, 98 L.Ed.2d 489 (1987) (When the defendant has moved for a mistrial or consents" }, { "docid": "8644899", "title": "", "text": "where the government engages in prosecutorial misconduct which gives rise to a successful motion for mistrial, and such misconduct “was intended to provoke the defendant into moving for a mistrial.” Kennedy, 456 U.S. at 679, 102 S.Ct. at 2091. The reason for this, according to Kennedy, is that such misconduct prejudices the defendant’s interest in having his trial completed by the jury empaneled to try him. Id. at 673, 102 S.Ct. at 2088. We explained this in United States v. Higgins: If the prosecutor deliberately introduces error in order to provoke the defendant into moving for a mistrial and to “rescue” a trial going badly, “the Constitution treats matters as if the mistrial had been declared on the prosecutor’s initiative.” Higgins, 75 F.3d at 333 (citing Kennedy, 456 U.S. at 679, 102 S.Ct. at 2091; United States v. Oseni, 996 F.2d 186 (7th Cir.1993); United States v. Jozwiak, 954 F.2d 458 (7th Cir.1992)). If that is the case, double jeopardy will bar the defendant from being retried. Although Kennedy involved a situation in which the defendant actually moved for a mistrial, Doyle argues on appeal that there is no logical or legal basis for concluding that Kennedy’s reach is limited to such situations. In support of his position, Doyle contends that we should adopt dicta from the Second Circuit’s decision in United States v. Wallach, 979 F.2d 912 (2d Cir.1992), cert. denied, 508 U.S. 939, 113 S.Ct. 2414, 124 L.Ed.2d 637 (1993). This dicta suggests that the Double Jeopardy Clause might protect a defendant against retrial if the prosecutorial misconduct was undertaken with the intent of preventing an acquittal the prosecutor reasonably believed, at that time, was likely absent such misconduct. Id. at 916. Doyle believes that Wallach’s proposed extension of Kennedy should be applied to his case because the prosecutorial misconduct was of such a nature that it could not have been discovered by the defense until after trial, and the misconduct was undertaken in an effort to avoid an inevitable verdict of acquittal. In Wallach, the defendant was convicted of federal criminal charges. The Second Circuit reversed the" }, { "docid": "10701622", "title": "", "text": "EASTERBROOK, Circuit Judge. Of three persons jointly indicted for cocaine offenses, one pleaded guilty and two were convicted by a jury. Mark Higgins, who pleaded guilty, instructed his lawyer to appeal; counsel filed an Anders brief. As counsel concluded, Higgins lacks plausible appellate contentions. The unconditional plea surrendered any objection to the court’s pretrial decisions; the judge followed Fed. R.Crim.P. 11 when taking the plea; and the judge was entitled to conclude that Higgins supervised at least one other person, leading to a two-level enhancement and a sentence of 121 months’ imprisonment. We grant counsel’s motion to withdraw and dismiss Higgins’ appeal as frivolous. The other two appeals have only slightly more substance. Thaddeus Harrison and Orlando Potts were tried twice. The first ended in a mistrial when the question “after the arrest of Thaddeus Harrison, what happened next?” led to this response by an agent of the DEA: I applied for and received — Mr. Harrison was arrested at the scene. We asked him if he wanted to cooperate, and he was Mirandized. He stated he didn’t. Then we came back to our office ... Before the agent could say more, Harrison’s lawyer objected. At defendants’ request, the district judge declared a mistrial, concluding that the agent’s statement was impermissible under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and United States v. Hale, 422 U.S. 171. 95 S.Ct. 2133. 45 L.Ed.2d 99 (1975). Harrison and Potts then argued that a second trial would violate the fifth amendment’s double jeopardy clause. Defendants who request a mistrial relinquish their entitlement to a verdict by the jury then impaneled and may not use the double jeopardy clause to avoid a second trial. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). But if the prosecutor deliberately introduces error in order to provoke a mistrial request and rescue a trial going badly, the Constitution treats matters as if the mistrial had been declared on the prosecutor’s initiative. See Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416" }, { "docid": "14430396", "title": "", "text": "granted at the defendant’s request, or with his/her consent, is wholly consistent with the protection of the double jeopardy clause.); United States v. Crotwell, 896 F.2d 437, 439 (10th Cir.1990) (When a mistrial has been declared, the double jeopardy clause precludes a retrial of the defendant unless the defendant consented to the mistrial, see United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), or unless the mistrial was compelled by “manifest necessity.”) (citations omitted); Lovinger v. Circuit Court of the 19th Jud. Circuit, 845 F.2d 739, 743 (7th Cir.1988) (A defendant who consents to the termination of a first trial may again be put in jeopardy for the same offense, unless the conduct of the prosecutor or judge was intended to provoke the mistrial.) (citing Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)); United States v. Puleo, 817 F.2d 702, 705 (11th Cir.), cert. denied, 484 U.S. 978, 108 S.Ct. 491, 98 L.Ed.2d 489 (1987) (When the defendant has moved for a mistrial or consents to its declaration, the double jeopardy clause will not bar his retrial.) (citing United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978)); United States v. Rivera, 802 F.2d 593, 597 (2d Cir.1986) (The critical double jeopardy inquiry in the mistrial context is whether the defendant sought or consented to the mistrial.); United States v. Mitchell, 736 F.2d 1299, 1300 (9th Cir.), cert. denied sub nom, 474 U.S. 830, 106 S.Ct. 94, 88 L.Ed.2d 77 (1985) (Where defendant consents to a mistrial ... the \"manifest necessity” doctrine does not come into play and as a general rule retrial is permitted because defendant himself has elected to terminate the proceedings and begin afresh.) (citing Oregon v. Kennedy, 456 U.S. at 672, 102 S.Ct. at 2087); United States v. Phillips, 431 F.2d 949, 950 (3d Cir.1970) (Defendant who failed to object to court’s proposal to discharge jury because of irreconcilable disagreement was not entitled to have indictment dismissed on the ground of double jeopardy.). . The note read: The jury has" }, { "docid": "10701624", "title": "", "text": "(1982); United States v. Oseni, 996 F.2d 186 (7th Cir.1993); United States v. Jozwiak, 954 F.2d 458 (7th Cir.1992). The district judge held a hearing, received testimony from the agent, and concluded that the statement had not been designed to elicit a mistrial request. The second trial followed promptly. Defendants insist that retrial should not have occurred because the witness deliberately misbehaved; the United States relies on the district judge’s findings about the agent’s (and the prosecutor’s) motives. We need not resolve the dispute, because there was no reason to end the first trial and it is therefore impossible to treat the agent’s answer as a maneuver designed to yield a second, and better, shot at a conviction. Hale and Doyle do not forbid all mention at trial of Miranda warnings and the defendant’s response to them. They establish instead that silence following the receipt of Miranda warnings may not be used against a defendant. Silence may be no more than a response to the advice about one’s rights— and it is inappropriate to promise a defendant that he may remain silent yet turn silence against him at trial. See Brecht v. Abrahamson, 507 U.S. 619, 627-30, 113 S.Ct. 1710, 1716-17, 123 L.Ed.2d 353 (1993) (discussing the basis of Doyle). A statement such as “I told the suspect that he could remain silent, and he did” does not ask the jury to infer guilt from silence. Even if it did, the right response would be corrective advice from the judge. Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102. 97 L.Ed.2d 618 (1987), holds that such advice suffices even when the prosecutor asks a pointed question such as “Why didn’t you tell [your current] story to anybody when you got arrested” (483 U.S. at 759, 107 S.Ct. at 3105) — which invites the inference that the defense is a recent fabrication, and that silence at arrest implies consciousness of guilt. The judge in Greer sustained an objection to the question and later told the jury to “disregard questions ... to which objections were sustained.” Ibid. The Court concluded, first, that" }, { "docid": "23176032", "title": "", "text": "on August 16, 1982, in Ocala, Florida. The government started its case by calling various persons who testified as custodian of record or chain of custody witnesses. Several witnesses identified documentary evidence. The government’s first fact witness was Diego Morales, a marijuana dealer. After many hours on the stand the prosecutor asked him on redirect who had accompanied him on a particular trip to one of the marijuana farms. He answered, “Leonel Fernandez. They killed him; can’t testify.” R.Vol. LII at 208. Immediately, all of the defendants moved for a mistrial which was granted by the district judge. Prior to the second trial all of the defendants moved for dismissal of the indictment on double jeopardy grounds. The district judge denied the motions which he characterized as “frivolous.” R.Vol. X at 507-508. All of the appellants once more assert that the indictments against them should be dismissed on double jeopardy grounds. We affirm the district court’s ruling. The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). Where the trial is terminated over the objection of the defendant the test for lifting the double jeopardy bar to a second trial is the “manifest necessity” test first set out by the Supreme Court in United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824). The usual situation meeting this standard is the hung jury. But in the case of a mistrial declared at the request of a defendant, “there is a narrow exception to the rule that the Double Jeopardy Clause is no bar to retrial.” Oregon v. Kennedy, 456 U.S. 667, 673, 102 S.Ct. 2083, 2088, 72 L.Ed.2d 416 (1982) (citations omitted). A defendant’s motion for a mistrial constitutes “a deliberate election on his part to forego his valued right to have his guilt or innocence determined before the first trier of fact.” United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978). If prosecutorial error has" }, { "docid": "4448315", "title": "", "text": "loads that are the subject of this case? Mr. Ossorio: Well, simply because that was the procedure that he always uses and that he used in this case, Your Honor. The Court: And you don’t see a problem with that Mr. Ossorio? Mr. Ossorio: No, Your Honor, I don’t. Rec, vol. 3, at 165-66. After further discussion, defense counsel “mov[ed] for mistrial or in the alternative to strike all testimony of Dr. Fransoza.” Id. at 168-69. The prosecution argued against a mistrial and asked instead for the court to give a limiting instruction. The court considered the matter and decided to grant the mistrial because it believed limiting instructions could not effectively cure Dr. Fransoza’s prejudicial testimony. A few days later, on November 3, 1997, Mr. Valadez-Camarena moved for a dismissal based on double jeopardy. The court denied the motion, finding “absolutely no evidence of any attempt by the Government in this case to goad the Defendant into moving for a mistrial.... The prejudicial testimony elicited by the Government can, at best, be characterized as prosecutorial negligence or mistake.” Brief of Aplt., Att. D at 1. Mr. Valadez-Camarena was subsequently tried and convicted. II. “The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (footnote omitted). Although the Double Jeopardy Clause usually bars retrial where the prosecution moves for a mistrial over the objection of the defense, in select circumstances it also prevents retrial where the first trial ended at the defendant’s request. See id. at 672-73, 102 S.Ct. 2083. When a prosecutor “ ‘goadfs] the [defendant] into requesting mistrial’ ... the defendant’s valued right to complete his trial before the first jury would be a hollow shell” were retrial permissible. Id. at 673, 102 S.Ct. 2083 (quoting United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)); United States v. McAleer, 138 F.3d 852, 855-56 (10th Cir.1998). Therefore, if the government intended to provoke the defendant into moving for a mistrial," }, { "docid": "20884595", "title": "", "text": "Is that all he said, I just can’t let you leave? Ms. Hubanks: “I can’t let you leave here alive.” VII R. 41. Defendants moved for a mistrial based on the prejudicial nature of a murder threat. The district court denied the motion but admonished the jury to disregard the testimony regarding the threat. During cross examination, Ms. Hubanks stated that A.J. Whitmore “had a contract out” on her. VII R. 167. Defendants were then granted a mistrial, and moved to dismiss, arguing that the prosecutor intentionally elicited evidence of the threat. The government argues that evidence of the threat was relevant to show Mr. Whit-more’s state of mind, and that it was unaware of evidence of any “contract.” The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). The Double Jeopardy Clause, however, does not guarantee the defendant that the state will vindicate its societal interest in the enforcement of the criminal laws in one proceeding. United States v. Jorn, 400 U.S. 470, 483-84, 91 S.Ct. 547, 556-57, 27 L.Ed.2d 543 (1971). Ordinarily, if the defendant requests a mistrial, double jeopardy is not a bar to retrial. United States v. Tateo, 377 U.S. 463, 467-68, 84 S.Ct. 1587, 1590, 12 L.Ed.2d 448 (1964). A narrow exception to this rule lies where the prosecutor acts in bad faith to “goad the [defendant] into requesting a mistrial” in order to “afford the prosecution a more favorable opportunity to convict.” Dinitz, 424 U.S. at 611, 96 S.Ct. at 1081. The prosecutor must actually intend to force the defendant to elect a mistrial. Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982). We review the trial court’s denial of a motion to dismiss on double jeopardy grounds under an abuse of discretion standard. United States v. McKinnell, 888 F.2d 669, 675 (10th Cir.1989). The district court did not find the initial testimony elicited by the prosecution sufficiently prejudicial to warrant a mistrial," } ]

[ { "docid": "19603321", "title": "", "text": "of the statute as a matter of constitutional avoidance. We will not \"lightly ascribe ... an unconstitutional intent\" to Congress. Ward v. Dixie Nat'l Life Ins. Co. , 595 F.3d 164, 177 (4th Cir. 2010). But given the clear language of § 924(c)(3)(B), we lack the power to avoid its constitutional infirmity. We are \"obligated to construe [a] statute to avoid [constitutional] problems.\" INS v. St. Cyr , 533 U.S. 289, 300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). However, we may do this only if such a reading is \"fairly possible,\" id. (internal quotation marks omitted), \"after the application of ordinary textual analysis,\" Jennings v. Rodriguez , --- U.S. ----, 138 S.Ct. 830, 842, 200 L.Ed.2d 122 (2018) (internal quotation marks omitted). Where, as here, there is an \"absence of more than one plausible construction,\" the canon of constitutional avoidance \"simply has no application.\" Jennings , 138 S.Ct. at 842 (internal quotation marks omitted). This limitation is an important one. As the Supreme Court recently explained, \"[s]potting a constitutional issue does not give a court the authority to rewrite a statute as it pleases.\" Id. at 843. Rather, constitutional avoidance serves the \"basic democratic function of maintaining a set of statutes that reflect, rather than distort, the policy choices that elected representatives have made.\" Almendarez-Torres v. United States , 523 U.S. 224, 238, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). The doctrine is thus \"a means of giving effect to congressional intent, not of subverting it.\" Clark , 543 U.S. at 382, 125 S.Ct. 716. In the words of the Chief Justice, \"rewrit[ing] a law to conform it to constitutional requirements ... would constitute a serious invasion of the legislative domain.\" United States v. Stevens , 559 U.S. 460, 481, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (alterations and internal quotation marks omitted). In this regard, the seemingly disparate doctrines of vagueness and constitutional avoidance unite. Both demand respect for the distinct functions that Congress and the judiciary fulfill in our constitutional republic. Due process requires Congress to speak in definite terms, particularly where the consequences for individual liberties" } ]

[ { "docid": "15793466", "title": "", "text": "our human rights commitments. Just as the Charming Betsy canon helps domestic law realize international obligations, so the constitutional avoidance canon, which requires courts to strive to interpret statutes to avoid serious constitutional questions, helps keep government within lawful bounds without necessitating frequent battles between the judiciary and the political branches. See, e.g., Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring). Similarly, “when a particular interpretation of a statute invokes the outer limits of Congress’ power, [courts] expect a clear indication that Congress intended that result.” INS v. St. Cyr, 533 U.S. 289, 299, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (citing Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988)). As a general matter, “[i]n traditionally sensitive areas, ... the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” Gregory v. Ashcroft, 501 U.S. 452, 461, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (quoting United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971)). Courts have also consistently interpreted statutes to protect “discrete and insular minorities,” and there can be little doubt that prisoners are as vulnerable to oppression by the political majority as any group in society. See Krent, supra, at 1068-69. Interpretive canons protect immigrants, see, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (citing authority for “the longstanding principle of construing lingering ambiguities in deportation statutes in favor of the alien”),' and Indian tribes, see, e.g., Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985) (“[S]tatutes are to be construed liberally in favor of the Indians .... ”); Winters v. United States, 207 U.S. 564, 576, 28 S.Ct. 207, 52 L.Ed. 340(1908) (“[A]mbiguities occurring [in treaties and agreements with Indian tribes] will be resolved from the standpoint of the Indians”). A number of" }, { "docid": "12877000", "title": "", "text": "Some appellate courts have recognized the question as an open one, see, e.g., St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 638 (7th Cir.2007); Wirzburger v. Galvin, 412 F.3d 271, 283 (1st Cir.2005); Taylor v. Johnson, 257 F.3d 470, 473 n. 2 (5th Cir.2001) (per curiam), but we are not aware of a single circuit court holding that religious classifications are subject to only rational-basis review. We also note that numerous state courts either have held that religious affiliation is a suspect classification or have issued opinions with strong dicta to that effect. See, e.g., Bagley v. Raymond Sch. Dep’t, 728 A.2d 127, 137 (Me.1999); Marrujo v. N.M. State High way Transp. Dep't, 118 N.M. 753, 887 P.2d 747, 751 (1994); Bd. of Cnty. Comm’rs of Saguache v. Flickinger, 687 P.2d 975, 982 n. 9 (Colo.1984) (en banc); State v. Correll, 626 S.W.2d 699, 701 (Tenn.1982); Burmaster v. Gravity Drainage Dist. No. 2 of St. Charles Parish, 366 So.2d 1381, 1386 n. 3 (La. 1978); Gunn v. Lane County, 173 Or.App. 97, 20 P.3d 247, 251 (2001); LaCava v. Lucander, 58 Mass.App.Ct. 527, 791 N.E.2d 358, 363 (2003). But see State v. Purcell, 199 Ariz. 319, 18 P.3d 113, 121 (Ct.App.2001) (“In addition to being a fundamental right, religious affiliation also may be a suspect classification under the Equal Protection Clause.” (emphasis added)); State v. Davis, 504 N.W.2d 767, 771 (Minn.1993), cert. denied, 511 U.S. 1115, 114 S.Ct. 2120, 128 L.Ed.2d 679 (1994); Casarez v. State, 913 S.W.2d 468 (Tex.Crim.App.1994). . Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (\"It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” (quoting Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905))); Liverpool, N.Y. & Phila. S.S. Co. v. Comm’rs of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885) (\"In the exercise of [its] jurisdiction, [the Court must] ... never ... formulate a" }, { "docid": "15793465", "title": "", "text": "to the relevant treaties, expressing an understanding that they require no more than the Eighth Amendment, might have; and the extent to which a customary norm with jus cogens status can become binding even on a state that persistently objects to it. Suffice it to say that international law creates an independent source of obligation to provide to prisoners at least those protections that the Eighth Amendment provides. Regardless of whether and to what extent treaties or customary law can provide an implied cause of action, courts must approach prisoner cases under domestic law with an appreciation for the United States’ international obligations. c. Interpretive Presumptions International law and the federal Constitution guide adjudication of prisoner cases in two ways. First, each requires that inmate complaints be given serious consideration. As a member of the international community and as a nation, the United States is committed to eradicating torture and cruel, inhumane, and degrading punishment. Second, Courts must strive to interpret statutes and regulations and to apply federal common law in a way that vindicates our human rights commitments. Just as the Charming Betsy canon helps domestic law realize international obligations, so the constitutional avoidance canon, which requires courts to strive to interpret statutes to avoid serious constitutional questions, helps keep government within lawful bounds without necessitating frequent battles between the judiciary and the political branches. See, e.g., Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring). Similarly, “when a particular interpretation of a statute invokes the outer limits of Congress’ power, [courts] expect a clear indication that Congress intended that result.” INS v. St. Cyr, 533 U.S. 289, 299, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (citing Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988)). As a general matter, “[i]n traditionally sensitive areas, ... the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” Gregory v." }, { "docid": "8758443", "title": "", "text": "acting under the color of express authority of the United States Constitution, we start with a presumption that his acts are constitutional.... Just to show that plausible interpretations of the pertinent constitutional clause exist other than that advanced by the President is not enough.”); United States v. Allocco, 305 F.2d 704, 713-14 (2d Cir.1962). Not only does the President take an oath of fealty to the Constitution, and not only is his most important constitutional duty to “take Care that the Laws be faithfully executed,” but such a presumption is integral to the operation of the executive branch. See Youngstown, 343 U.S. at 610-11, 72 S.Ct. 863 (Frankfurter, J., concurring) (establishing that a practice “engaged in by Presidents who have also sworn to uphold the Constitution ... may be treated as a gloss on ‘executive Power’ ”). The Majority carves out its own exception, suggesting that, in particular, no such presumption applies in separation of powers cases, but this presumption should apply with the most force in such cases. In executing the duties of his office, the President must not be hindered because the constitutionality of his actions is held in doubt. See Baker v. Carr, 369 U.S. 186, 210-11, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (emphasizing the importance of respecting the finality of the actions of the political branches); Nixon v. United States, 506 U.S. 224, 236, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (same). For a host of self-evident reasons, the judiciary should avoid upending longstanding practices of the other branches unless they are plainly unconstitutional. See Noel Canning, 705 F.3d at 515 (Griffith, J., concurring); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345-48, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (acknowledging principles of judicial restraint regarding constitutional questions). 1. The Tradition and Practice of the President The tradition and practice of the President, especially since 1947, unequivocally shows that intrasession recess appointments have been continuously accepted as a constitutional use of the executive power. Since 1947, Presidents have made nearly 400 intrasession recess appointments without significant rebuke or controversy. See Henry B." }, { "docid": "10696421", "title": "", "text": "contractual partner, OPM. LTC Partners argues that this exercise of jurisdiction guts its right to enjoy the limitations on review imposed by the LTCSA; forces it to expend resources on administrative litigation whether or not it is a party to the proceedings; and imperils the contract through the threat of an adverse ruling on the merits against OPM in the pending EEOC actions. The government responds by noting that EEOC decisions on the merits in Fornaro and James would operate only against OPM, arguing that any projected downstream effects of such rulings on LTC Partners are too conjectural or hypothetical to confer Article III standing. Notwithstanding the government’s invocation of standing concerns, we decline, as did the district court, to decide this case on standing grounds. This court previously determined that analysis of whether a case presents “final agency action” should precede a standing inquiry. Flue-Cured Tobacco Coop. Stabilization Corp. v. EPA 313 F.3d 852, 857 (4th Cir.2002). We reasoned that the doctrine of constitutional avoidance requires us to eschew determinations of Article III standing, a constitutional question, in cases in which a statutory jurisdictional inquiry could dictate the result. Id. (citing Ashwander v. Tenn. Valley Autk, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (“It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”) (internal quotations omitted)). The continued validity of this portion of the decision in Flue-Cured Tobacco has been called into question somewhat by Arbaugh v. Y&H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). In Arbaugh, the Supreme Court considered the provision of Title VII limiting its applicability to businesses over a certain size. Id. at 504-05, 126 S.Ct. 1235 (citing 42 U.S.C. § 2000e(b) (defining “employer” to include only those entities having “fifteen or more employees”)). The district court had determined, after trial, and on the employer’s motion, that it lacked subject matter jurisdiction because the defendant employed fewer than fifteen employees, and consequently dismissed the case. The Fifth Circuit affirmed. The" }, { "docid": "558658", "title": "", "text": "S.Ct. 528, 97 L.Ed. 727 (1953), and in litigation between private parties, e. g., Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C.1966), aff’d per curiam, 128 U.S. App.D.C. 10, 384 F.2d 979, cert. denied, 389 U.S. 952, 88 S,Ct. 334, 19 L.Ed.2d 361 (1967). . See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). . If the Government asserts a constitutional privilege on remand, ' the court will not thereby be deprived of jurisdiction, for the judicial power extends to resolving the questions of separation of powers raised by the constitutional claim. See Powell v. McCormack, 395 U.S. 486, 512-522, 548-549, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Baker v. Carr, 369 U.S. 186, 198-204, 208-237, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); cf. Berger (Pt. II), supra note 9, at 1349-1360. The precise limits of legislative authority over the executive branch are not clear. In discussing the President’s power to remove officers, the Supreme Court has drawn an uncertain distinction between officers who exercise purely executive functions, and those whose functions are quasi-legislative or quasi-judicial; only the former are removable at the will of the President in spite of a contrary congressional enactment. Compare Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958), and Humphrey’s Ex’r v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), with Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). See also Kendall v. United States, 37 U.S. (12 Pet.) 524, 610, 612-613, 9 L.Ed. 1181 (1838). . The fact that the President may have ordered the Director of the OST not to release the Garwin Report does not leave the courts without power to review the legality of withholding the Report, for courts have power to compel subordinate executive officials to disobey illegal Presidential commands. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). If nondisclosure of the Garwin Report is not supported by a" }, { "docid": "3035250", "title": "", "text": "the courts do not have authority under the mandamus statute to order any government official to perform a discretionary duty. Heckler, 466 U.S. at 616, 104 S.Ct. at 2022; 13th Regional Corp. v. United States Dep’t of Interior, 654 F.2d 758, 760 (D.C.Cir.1980). Swan alleges that the President violated a duty to comply with removal restrictions contained in the NCUA statute and not interfere with Swan’s holdover status until Swan’s successor had “qualified.” This duty, if it exists, is ministerial and not discretionary, for the President is bound to abide by the requirements of duly enacted and otherwise constitutional statutes. See U.S. Const, art. II, § 3, cl. 3 (the President “shall take Care that the Laws be faithfully executed”); Kendall v. United States, 37 U.S. (12 Pet.) 524, 613, 9 L.Ed. 1181 (1838) (“To contend that the obligation imposed on the President to see the laws faithfully executed implies a power to forbid their execution, is a novel construction of the Constitution, and entirely inadmissible”); Chamber of Commerce v. Reich, 74 F.3d 1322, 1332 (D.C.Cir.1996) (denying that the President can “bypass scores of statutory limitations on governmental activity”); NTEU v. Nixon, 492 F.2d 587, 604 (D.C.Cir.1974) (the President may not refrain from executing laws duly enacted by the Congress as those laws are construed by the judiciary). The government, on the other hand, argues that since the NCUA statute nowhere- expressly limits the President’s removal power, the statute cannot impose a nonremoval duty of sufficient clarity to create a ministerial duty. We disagree with that part of the government’s argument. As we have stated often in the mandamus context, a ministerial duty can exist even “where the interpretation of the controlling statute is in doubt,” provided that “the statute, once interpreted, creates a peremptory obligation for the officer to act.” 13th Regional Corp., 654 F.2d 758 at 760; see also American Cetacean Soc’y, 768 F.2d at 433 (D.C.Cir.1985) (‘“If, after studying the statute and its legislative history, the court determines that the defendant official has failed to discharge a duty which Congress intended him to perform, the court should" }, { "docid": "3035249", "title": "", "text": "because the plurality opinion there specifically noted that the Court had “left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely ‘ministerial’ duty.” Id. at 802, 112 S.Ct. at 2776 (quoting Mississippi, 71 U.S. (4 Wall.) at 498-99). A ministerial duty is one that admits of no discretion, so that the official in question has no authority to determine whether to perform the duty. Mississippi, 71 U.S. (4 Wall.) at 498 (“a ministerial duty ... is one in respect to which nothing is left to discretion”); see also Beatty v. Washington Metro. Area Transit Auth., 860 F.2d 1117, 1127 (D.C.Cir.1988) (“ ‘Generally speaking, a duty is discretiohary if it involves judgment, planning, or policy decisions. It is not discretionary [i.e. ministerial] if it involves enforcement or administration of a mandatory duty at the operational level’”) (alteration in original and emphasis omitted) (quoting Jackson v. Kelly, 557 F.2d 735, 737-38 (10th Cir.1977)). The distinction between discretionary and ministerial duties is also critical in this case because the courts do not have authority under the mandamus statute to order any government official to perform a discretionary duty. Heckler, 466 U.S. at 616, 104 S.Ct. at 2022; 13th Regional Corp. v. United States Dep’t of Interior, 654 F.2d 758, 760 (D.C.Cir.1980). Swan alleges that the President violated a duty to comply with removal restrictions contained in the NCUA statute and not interfere with Swan’s holdover status until Swan’s successor had “qualified.” This duty, if it exists, is ministerial and not discretionary, for the President is bound to abide by the requirements of duly enacted and otherwise constitutional statutes. See U.S. Const, art. II, § 3, cl. 3 (the President “shall take Care that the Laws be faithfully executed”); Kendall v. United States, 37 U.S. (12 Pet.) 524, 613, 9 L.Ed. 1181 (1838) (“To contend that the obligation imposed on the President to see the laws faithfully executed implies a power to forbid their execution, is a novel construction of the Constitution, and entirely inadmissible”); Chamber of Commerce v. Reich, 74 F.3d 1322, 1332" }, { "docid": "23235721", "title": "", "text": "of the circuit, regardless of whether doing so is necessary in some strict logical sense.”) (quoting United States v. Johnson, 256 F.3d 895, 914 (9th Cir.2001) (enbanc)). . The DeBartolo case involved a lawsuit to enjoin handbilling by a labor union. Finding that neither the statute nor the legislative history indicated the clear congressional intent to reach the handbilling at issue, the Court declined to give the applicable NLRA provision a construction that would raise serious First Amendment questions. DeBartolo, 485 U.S. at 578-88, 108 S.Ct. 1392. . In this sense, Noerr-Pennington is a specific application of the rule of statutory construction known as the canon of constitutional avoidance, which requires a statute to be construed so as to avoid serious doubts as to the constitutionality of an alternate construction. See, e.g., INS v. St. Cyr, 533 U.S. 289, 299-300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (\"[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is 'fairly possible,’ we are obligated to construe the statute to avoid such problems.”); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (same). . Even before BE & K clarified that the principal application of the Noerr-Pennington doctrine is as a rule of statutory construction, the body of Noerr-Pennington law in our circuit has so applied the doctrine in cases falling outside of the antitrust context. For example, in White, the U.S. Department of Housing and Urban Development (\"HUD”) conducted an eight-month investigation into whether plaintiffs' advocacy activities and state court lawsuit opposing the development of a multifamily housing unit in their neighborhood violated the Federal Housing Act (\"FHA”), and as a result, HUD officials advised plaintiffs to cease their litigation activities. White, 227 F.3d at 1220. Plaintiffs challenged this investigation as a violation of their rights of free speech and petition. Id. We declined to construe the FHA broadly to reach the constitutionally protected activities at issue in the case. Id. at 1239. Following Noerr-Penning-ton, we held that the FHA" }, { "docid": "3317395", "title": "", "text": "100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) (emphasis added). While the President may veto a Congressional enactment under the Presentment Clause, he must “either ‘approve all the parts of a Bill, or reject it in total.’ ” Clinton v. City of New York, 524 U.S. 417, 438, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) (quoting 33 Writings of George Washington 96 (J. Fitzpatrick ed., 1940)). He cannot “repeal[] or amend[] parts of duly enacted statutes” after they become law. Id. at 439, 118 S.Ct. 2091. This is true even if Congress has attempted to expressly delegate such power to the President. Id. In City of New York, the Supreme Court concluded that the Line Item Veto Act, which sought to grant the President the power to cancel particular direct spending and tax benefit provisions in bills, was unconstitutional because it ran afoul of the “ ‘finely wrought’ procedures commanded by the Constitution” for enacting laws. Id. at 448, 118 S.Ct. 2091 (quoting INS v. Chadha, 462 U.S. 919, 961, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983)). While Congress can delegate some discretion to the President to decide how to spend appropriated funds, any delegation and discretion is cabined by these constitutional boundaries. After a bill becomes law, the President is required to “take Care that the Law be faithfully executed.” See U.S. Const, art. II, § 3, cl. 5. Where Congress has failed to give the President -.discretion in allocating funds, the President has no constitutional authority to withhold such funds and violates his obligation to faithfully execute the laws duly enacted by Congress if he does so. See City of New York, 524 U.S. at 439, 118 S.Ct. 2091; U.S. Const, art. I, § 8, cl. 1. Further, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring). Congress has intentionally limited the ability of the President to withhold or “impound” appropriated funds and has provided that" }, { "docid": "20735519", "title": "", "text": "to the Tank Ramp area.” Id. As the application of our Tiffany decision makes clear, such an assessment, especially the issue of whether to provide a backup generator for the Tank Ramp, is beyond the scope of judicial review. In these circumstances, therefore, the political question doctrine deprived the district court of jurisdiction to adjudicate the merits of Taylor’s negligence claim. B. Finally, because we agree with the district court that the political question doctrine applies here, the second appellate issue — whether Taylor’s negligence claim is preempted by the FTCA’s combat activities exception — is rendered moot. And, as we recently explained, our “customary practice when a case is rendered moot on appeal is to vacate the moot aspects of the lower court’s judgment.” Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir.2010) (citing Alvarez v. Smith, — U.S. -, 130 S.Ct. 576, 581, 175 L.Ed.2d 447 (2009)). Typically, however, such a vacatur is only warranted where— as here — “mootness has occurred through happenstance, rather than through the voluntary action of the losing party.” Id. at 162 (internal quotation marks omitted). Otherwise, a party seeking appellate review of an adverse ruling, but which is frustrated in that regard by “the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment.” Id. (internal quotation marks omitted). Because the political question doctrine deprives the federal courts of jurisdiction to resolve Taylor’s negligence claim, a ruling on the FTCA issue would be little more than an advisory opinion on a constitutional question — something the Ashwander doctrine obliges us to avoid. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341-47, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (explaining that courts should not “decide questions of a constitutional nature unless absolutely necessary”). More specifically, our potential resolution of the FTCA issue implicates the Supremacy Clause of the Constitution. See U.S. Const, art. VI, cl. 2 (“This Constitution, and the Laws of the United States ... shall be the supreme Law of the Land ... ”); Koohi v. United States," }, { "docid": "4833245", "title": "", "text": "law, it was Bryan’s responsibility to bring the plaintiffs before a judge in a timely manner. The record establishes a reasonable officer would not have believed that Bryan’s actions in attempting to fulfill that obligation violated the plaintiffs’ constitutional rights under clearly established law. Bryan is therefore entitled to qualified immunity. V. We affirm the judgment of the district court. . LeMaire v. Louisiana Dept. of Transp. and Dev., 480 F.3d 383, 386 (5th Cir.2007). . Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.2007) (citing Fed. R. Civ. P. 56(c)). . TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002) (internal quotation marks omitted) (citing Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). . Id. (citing SEC v. Recite, 10 F.3d 1093, 1097 (5th Cir.1993)). . Holtzclaw v. DSC Commc'ns Corp., 255 F.3d 254, 258 (5th Cir.2001). . 420 U.S. 103, 113, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). . Id. at 124-25, 95 S.Ct. 854. . 500 U.S. 44, 56, 111 S.Ct 1661, 114 L.Ed.2d 49 (1991); see also Powell v. Nevada, 511 U.S. 79, 80, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994) (\"[P]rompt generally means within 48 hours of the warrantless arrest; absent extraordinary circumstances, a longer delay violates the Fourth Amendment.”) (internal quotation marks omitted). . McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661. . Id. . Id. at 55, 57, 111 S.Ct. 1661. . Id. at 57, 111 S.Ct. 1661. . Id. . See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (\"The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”) . James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir.2008). . Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (internal quotation marks omitted). ." }, { "docid": "9018283", "title": "", "text": "statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems.\" Jennings v. Rodriguez , --- U.S. ----, 138 S.Ct. 830, 836, 200 L.Ed.2d 122 (2018). Indeed, the Supreme Court has held that courts are \"obligated to construe [a] statute to avoid [constitutional] problems\" if it is \"fairly possible\" to do so. I.N.S. v. St. Cyr , 533 U.S. 289, 300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (citations omitted) (emphasis added). That is particularly true where (as here) absent a reasonable saving construction, a statute might be unconstitutionally vague. See United States ex rel. Att'y Gen. v. Delaware & Hudson Co. , 213 U.S. 366, 407, 29 S.Ct. 527, 53 L.Ed. 836 (1909) (noting that courts have a \"plain duty\" to adopt any \"reasonabl[e]\" interpretation of a statute that avoids vagueness concerns). The question here, therefore, is whether § 924(c)(3)'s residual clause is in fact \"susceptible of multiple interpretations,\" Jennings , 138 S.Ct. at 836 -and more particularly, whether it is \"plausible,\" Clark , 543 U.S. at 381, 125 S.Ct. 716, or \"fairly possible,\" St. Cyr , 533 U.S. at 300, 121 S.Ct. 2271, to interpret the clause to incorporate the (statute-preserving) conduct-based approach. Ovalles contends that the constitutional-doubt canon doesn't apply here because, she says, \"the text of § 924(c)(3)(B) is not open to competing, plausible interpretations\"-it can be understood only , she insists, to require the categorical approach. Appellant's En Banc Br. at 23; accord Dissenting Op. of J. Pryor at 1294 (asserting that a conduct-based reading \"does not ... even approach plausible\"). For the reasons explained below, we disagree. A In assessing whether § 924(c)(3)'s residual clause truly compels the categorical approach, we begin at the beginning: Where did this \"categorical approach\" come from? It's certainly not, it seems to us, the most intuitive way of thinking about a particular crime's risk of violence. Surely the usual means of considering that issue would be to account for all of the specific circumstances surrounding the offense's commission-i.e. , the actual" }, { "docid": "8914174", "title": "", "text": "whether inclusion of a tobacco-industry representative on the advisory group would likely have produced a different result. See Flue-Cured Tobacco, 4 F.Supp.2d at 447-49. The court concluded that “[h]ad EPA reconciled industry objections voiced from a representative body during the research process, the ETS Risk Assessment [Report] would very possibly not have been conducted in the same manner nor reached the same conclusions.” Flue-Cured Tobacco, 4 F.Supp.2d at 466. The court accordingly issued an order vacating “Chapters 1 thru 6 of and the Appendices” to the Report. Flue-Cured Tobacco, 4 F.Supp.2d at 466. The parties filed cross-appeals challenging the district court’s decision. III. Because questions of subject matter, jurisdiction concern a court’s power to reach the substantive issues of a case, Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 442 n. 4 (4th Cir.1999), we first address EPA’s contention that the district court lacked subject matter jurisdiction. EPA maintains that subject matter jurisdiction was lacking because the Report did not constitute reviewable final agency action under the APA, or in the alternative, because plaintiffs lacked standing to challenge the Report. Because we conclude that the Report was not final agency action, and therefore, that the district court lacked subject matter jurisdiction to hear plaintiffs’ claims, Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir.1994), we do not reach the standing issue. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (Brandeis, J., concurring) (“It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”). 5 U.S.C. § 702 of the APA provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” Other than agency action made specifically reviewable by statute, § 704 limits the APA’s non-statutory right of judicial review to final agency action. 5 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in" }, { "docid": "4833246", "title": "", "text": "at 124-25, 95 S.Ct. 854. . 500 U.S. 44, 56, 111 S.Ct 1661, 114 L.Ed.2d 49 (1991); see also Powell v. Nevada, 511 U.S. 79, 80, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994) (\"[P]rompt generally means within 48 hours of the warrantless arrest; absent extraordinary circumstances, a longer delay violates the Fourth Amendment.”) (internal quotation marks omitted). . McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661. . Id. . Id. at 55, 57, 111 S.Ct. 1661. . Id. at 57, 111 S.Ct. 1661. . Id. . See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (\"The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”) . James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir.2008). . Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (internal quotation marks omitted). . City of St. Louis v. Praprotnik, 485 U.S. 112, 122, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); see also Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 601 (5th Cir.2001). . Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Whether a person has such authority is determined by state law. Id. . James, 535 F.3d at 373. . See Swinney v. State, 829 So.2d 1225, 1231-32 (Miss.2002) (holding that \"unnecessary delay,” as used in a state statute, was interchangeable with the \"unreasonable delay” standard of McLaughlin). . Appellants argue that McLaughlin requires a jurisdiction to schedule probable cause determinations and initial appearances \"in no event later than 48 hours after arrest.” See 500 U.S. at 57, 111 S.Ct. 1661. This statement is taken out of context. McLaughlin used that language when discussing \"[a] jurisdiction that chooses to offer combined proceedings,” emphasizing that \"[t]he fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary" }, { "docid": "4648272", "title": "", "text": "One v. Holder, — U.S. —, 129 S.Ct. 2504, 2513, 174 L.Ed.2d 140 (2009) (“[I]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.” (quoting Escambia County v. McMillan, 466 U.S. 48, 51, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984))); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”); Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905) (“It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”). Under TRFRA, “[w]hile we must accept the trial court’s fact findings supported by the evidence, the ultimate answers determine the legal rights protected by the Act and are thus matters of law.” Barr v. City of Sinton, — S.W.3d —, —, 2009 WL 1712798, at *8 (Tex.2009). “A district court’s legal conclusions at a bench trial are reviewed de novo and its findings of fact are reviewed for clear error.” Adkins v. Kaspar, 393 F.3d 559, 563 (5th Cir.2004). The history of state religious freedom acts is, by now, well known. Before 1990, the United States Supreme Court interpreted the Free Exercise Clause of the First Amendment to protect religious practices substantially burdened by governmental regulation unless they furthered a compelling state interest. See City of Boerne v. Flores, 521 U.S. 507, 513-14, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). In 1990, the Court in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), exempted from this balancing test neutral laws of general applicability, such that Oregon’s criminal laws could proscribe a Native" }, { "docid": "12877001", "title": "", "text": "Or.App. 97, 20 P.3d 247, 251 (2001); LaCava v. Lucander, 58 Mass.App.Ct. 527, 791 N.E.2d 358, 363 (2003). But see State v. Purcell, 199 Ariz. 319, 18 P.3d 113, 121 (Ct.App.2001) (“In addition to being a fundamental right, religious affiliation also may be a suspect classification under the Equal Protection Clause.” (emphasis added)); State v. Davis, 504 N.W.2d 767, 771 (Minn.1993), cert. denied, 511 U.S. 1115, 114 S.Ct. 2120, 128 L.Ed.2d 679 (1994); Casarez v. State, 913 S.W.2d 468 (Tex.Crim.App.1994). . Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (\"It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” (quoting Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905))); Liverpool, N.Y. & Phila. S.S. Co. v. Comm’rs of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885) (\"In the exercise of [its] jurisdiction, [the Court must] ... never ... formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”); Ala. State Fed’n of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945) (\"It has long been [the Court’s] considered practice not ... to decide any constitutional question in advance of the necessity for its decision.”). . Other courts have drawn on the definition of \"immutable” in immigration cases when defining the term in the context of an equal-protection suit. Latta v. Otter, 771 F.3d 456, 464 n. 4 (9th Cir.2014) (quoting an immigration case for the proposition that “[sjexual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them” (alteration in original)), cert. denied, — U.S. -, 135 S.Ct. 2931, 192 L.Ed.2d 609 (2015). . Aziz Z. Huq, The Signaling Function of Religious Speech in Domestic Counterterrorism, 89 Tex. L.Rev. 833, 852 (2011) (recognizing that religion lies \"at the core of many individuals' understanding of their identity”);" }, { "docid": "23406640", "title": "", "text": "avoid constitutional problems if a viable alternative interpretation exists. See Awadallah III, 202 F.Supp.2d at 76-77 (citing INS v. St. Cyr, 533 U.S. 289, 299-300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Edward J. De-Bartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988)). This rule, which facilitates a choice between alternative interpretations of an ambiguous statute, has no bearing if the meaning of the statute is known. See Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 134, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002) (noting that “the canon of constitutional avoidance ... ‘has no application in the absence of statutory ambiguity ”) (quoting United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 494, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001)). Here, we have determined that Congress intended to place grand jury proceedings within the scope of § 3144. The canon of constitutional avoidance therefore does not come into play. Cf. St. Cyr, 533 U.S. at 299, 121 S.Ct. 2271 (noting the corollary rule that, “when a particular interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result”). Assuming arguendo that there are two viable interpretations of § 3144, “the canon ... applies only when there are serious concerns about the statute’s constitutionality.” Harris v. United States, 536 U.S. 545, 555, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (citation omitted). The district court determined that “[i]mprisoning a material witness for a grand jury investigation raises a serious constitutional question” under the Fourth Amendment’s prohibition against unreasonable search and seizure. Awadallah III, 202 F.Supp.2d at 77. We respectfully disagree. As a threshold matter, the detention of material witnesses for the purpose of securing grand jury testimony has withstood constitutional challenge. In New York v. O’Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959), the Supreme Court considered “the constitutionality of a Florida statute entitled ‘Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings.’ ”" }, { "docid": "10696422", "title": "", "text": "a constitutional question, in cases in which a statutory jurisdictional inquiry could dictate the result. Id. (citing Ashwander v. Tenn. Valley Autk, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (“It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”) (internal quotations omitted)). The continued validity of this portion of the decision in Flue-Cured Tobacco has been called into question somewhat by Arbaugh v. Y&H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). In Arbaugh, the Supreme Court considered the provision of Title VII limiting its applicability to businesses over a certain size. Id. at 504-05, 126 S.Ct. 1235 (citing 42 U.S.C. § 2000e(b) (defining “employer” to include only those entities having “fifteen or more employees”)). The district court had determined, after trial, and on the employer’s motion, that it lacked subject matter jurisdiction because the defendant employed fewer than fifteen employees, and consequently dismissed the case. The Fifth Circuit affirmed. The Supreme Court reversed, noting that the statutory provision at issue did not speak in jurisdictional terms, and concluding that the factual issue of whether the defendant had fifteen or more employees was not a jurisdictional limitation but an element of the claim for relief. Id. at 513-16, 126 S.Ct. 1235. The Court explained, “[W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” Id. at 516, 126 S.Ct. 1235. Cf. Partington v. Am. Int’l Specialty Lines Ins. Co., 443 F.3d 334, 338-39 (4th Cir.2006) (applying Arbaugh and finding that the district court properly exercised jurisdiction in a case involving alleged violations of the Securities Act of 1933). Relying on Arbaugh, the Court of Appeals for the District of Columbia has held that the requirement of final agency action under section 10(c) of the APA, 5 U.S.C. § 704, is not jurisdictional. Trudeau v. FTC, 456 F.3d 178, 183-84 & nn. 6-7 (D.C.Cir.2006); see also Nulankeyutmo-nen Nkihtaqmikon v. Impson, 503 F.3d 18, 33 (1st Cir.2007)" }, { "docid": "22565951", "title": "", "text": "one of those bases was appropriate. See Consol. Coal Co. v. Local 1702, United Mineworkers of Am., 683 F.2d 827, 831-32 (4th Cir.1982) (declining to address second of two independent bases for contempt order where first basis was properly affirmed). This contempt-specific rule flows from the more general maxim that, “[t]o obtain reversal of a district court judgment based on multiple, independent grounds, an appellant must convince us that every stated ground for the judgment against him is incorrect.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.2014). Furthermore, some of Lava-bit’s additional arguments implicate constitutional concerns. Those concerns provide even more reason to avoid addressing La-vabit’s new arguments. “The principle of constitutional avoidance ... requires the federal courts to avoid rendering constitutional rulings unless absolutely necessary.” Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 157 (4th Cir.2010) (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)); see also Bell Alt. Md., Inc. v. Prince George’s Cnty., Md., 212 F.3d 863, 865 (4th Cir.2000) (“[C]ourts should avoid deciding constitutional questions unless they are essential to the disposition of a case.”). So, we “will not decide a constitutional question, particularly a complicated constitutional question, if another ground adequately disposes of the controversy.” Strawser v. Atkins, 290 F.3d 720, 730 (4th Cir.2002). The long-established constitutional-avoidance rule applies squarely to this case. V. In view of Lavabit’s waiver of its appellate arguments by failing to raise them in the district court, and its failure to raise the issue of fundamental or plain error review, there is no cognizable basis upon which to challenge the Pen/Trap Order. The district court did not err, then, in finding Lavabit and Levison in contempt once they admittedly violated that order. The judgment of the district court is therefore AFFIRMED. . The record does not reflect the state of Lavabit’s organization or registration to do business. Neither does the record contain documents that verify the ownership of Lava-bit’s membership interests or the identity of its managing member. The parties and the" } ]

[ { "docid": "8311998", "title": "", "text": "file until it realized it would receive little financial recompense from an expected sale of property in the bankruptcy action. Their sole motivation for seeking withdrawal was to obtain relief in district court the bankruptcy court could not provide. Stavriotis, 111 B.R. at 155-56. Sevko argues that Ullman-Briggs has waited to seek withdrawal until it would be to its advantage, to avoid the discovery deadlines set by the bankruptcy judge. This is hardly convincing. Sevko can point to no other unfair prejudice it will suffer as a result of withdrawal. Any discovery conducted while in bankruptcy court will be transferred to the district court. Burger King Corp. v. B-K of Kansas, 64 B.R. 728, 730 (D.Kan.1986). The only other matter of substance conducted before the bankruptcy judge on the merits of this matter was Sevko’s motion to dismiss, which merely saves the district court the trouble of rebriefing. Lissner, 115 B.R. at 610-11. Ullman-Briggs’ motion is timely. II. Cause Among the factors to be considered in determining if cause exists are judicial economy, convenience, and the particular court’s knowledge of the facts. In re Ramex International, 91 B.R. 313, 315 (E.D.Pa.1988). Other factors worthy of equal consideration are promoting the uniformity and efficiency of bankruptcy administration, reduction of forum shopping and confusion, conservation of debtor and creditor resources, and whether the parties requested a jury trial. Hatzel & Buehler v. Central Hudson Gas & Electric, 106 B.R. 367, 371 (D.Del.1989). The existence of a jury trial demand is only a factor for non-core proceedings, because a jury verdict, like any judgment in the bankruptcy court on a non-core proceeding, is merely a recommendation to the district court. Requiring two jury trials would be a waste of judicial resources. In re Luis Electrical Contracting Group, 100 B.R. 155, 156-57 (E.D.N.Y.1989). Ullman-Briggs is in a situation in which it is involved in two proceedings in bankruptcy and non-bankruptcy forums, litigating essentially the same core of transactional facts, with different parties. Research indicates that when this situation arises, it has generally been found to constitute cause for discretionary withdrawal. See In re Wedtech," } ]

[ { "docid": "8562216", "title": "", "text": "proceeding requires consideration of both Title 11 and other federal laws. Withdrawal from the bankruptcy court is permissive under the statute “for cause shown.” As the movant in this case, Travelers bears the burden to show cause. In re NDEP Corp., 203 B.R. 905, 907 (D.Del.1996). Although the phrase “for cause shown” is not defined in the statute, the Court of Appeals for the Third Circuit has set forth five factors that a district court should consider in determining whether “cause” exists for discretionary withdrawal. These factors include: (1) promoting uniformity of bankruptcy administration; (2) reducing forum shopping and confusion; (3) fostering economical use of debtor/creditor resources; (4) expediting the bankruptcy process; and (5) timing of the request for withdrawal. In re Pruitt, 910 F.2d 1160, 1168 (3d Cir. 1990). Another factor that the district court should consider is whether the parties have requested a jury trial. Bankruptcy courts cannot conduct jury trials unless the parties consent. 28 U.S.C.A. § 157(e). However, assertion of a Seventh Amendment right to a jury trial, coupled with a refusal to consent to such trial before the bankruptcy court, is not of itself sufficient cause to justify discretionary withdrawal. In re Northwestern Institute of Psychiatry, Inc., 268 B.R. 79, 84 (Bankr. E.D.Pa.2001). Finally, it is important in assessing the propriety of withdrawing the reference to determine whether the action sought to be withdrawn is a core or non-core proceeding. See 28 U.S.C.A. § 157(b)(1). While the bankruptcy courts have jurisdiction to hear both core and non-core matters, the scope of the bankruptcy court’s authority is different. When adjudicating core matters, the bankruptcy court may issue final orders and judgments. 28 U.S.C. § 157(b)(1). In non-core matters, the bankruptcy court has more limited powers. It may not issue final orders and judgments; rather, it must submit proposed findings of fact and conclusions of law to the district court for de novo review. 28 U.S.C.A. § 157(c)(1). The Court of Appeals for the Third Circuit considers a proceeding to be core “if it invokes a substantive right provided by Title 11 or if it is a" }, { "docid": "12558184", "title": "", "text": "to strike Weisman’s jury demand. JURISDICTION AND PROCEDURE This court has jurisdiction over this matter under 28 U.S.C. § 1334(b) as a matter arising in a bankruptcy case. This proceeding is before the court pursuant to Local Rule 2.33 of the United States District Court for the Northern District of Illinois automatically referring bankruptcy cases and proceedings to this court for' hearing and determination. This is a core proceeding under 28 U.S.C. §§ 157(b)(2)(A) as a matter involving the administration of the estate. See In re Ben Cooper, Inc., 896 F.2d 1394, 1400 (2d Cir.), vacated and remanded on other grounds, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990, reinstated, 924 F.2d 36 (2d Cir.1991)) (postpetition contract claims are core); In re Arnold Print Works, 815 F.2d 165, 168 (1st Cir.1987) (same). But see In re Castlerock Properties, 781 F.2d 159, 162 (9th Cir.1986) (contra). The fact that this is a core proceeding in no way affects whether Weisman has a right to a jury trial. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989) (notwithstanding Congress’ designation of fraudulent conveyance actions as core proceedings, person sued by trustee in bankruptcy to recover an allegedly fraudulent transfer has right to jury trial). DISCUSSION The sole issue in this case is whether Weisman is entitled to a jury trial under the test set forth by the Supreme Court in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). Under the analysis enunciated in Granfinanciera, courts are to consider two factors in determining whether a litigant has a right to a jury trial: (1) whether the action brought would have been an action at law or in equity at common law; and (2) whether the remedy sought is legal or equitable in nature. Id. at 42,109 S.Ct. at 2790. The second factor, the remedy sought, carries more weight. Id. Under the Granfinanciera analysis, Weisman does not have a right to jury trial in this proceeding. Historically, breach of fiduciary duty actions have been considered to be equitable. In the" }, { "docid": "2941046", "title": "", "text": "has not consented to a jury trial in the bankruptcy court and the district court has not designated that the trial be held in the bankruptcy court as required under § 157(e), the district court must conduct the jury trial and this Court has cause to withdraw reference. In contrast, plaintiff argues that the adversary proceeding should remain in the bankruptcy court as a “core” proceeding under § 157(b)(2). With respect to defendant’s demand for a jury trial, the Trustee advances that if this Court finds defendant is entitled to a jury trial, such trial should nevertheless be held in the bankruptcy court. Furthermore, plaintiff argues, even if the Court finds that the proceeding is “non-core” under the bankruptcy code, then, for reasons of judicial economy, the case should remain in the bankruptcy court for pretrial purposes. See Mayall Aff. ¶¶ 35^0. DISCUSSION I. Standard for Withdrawal of Reference Resolution of this case focuses on the jurisdiction of bankruptcy courts under 28 U.S.C. § 157, which divides adversary proceedings into two categories: core and non-core. In Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), the Supreme Court held unconstitutional the Bankruptcy Act of 1978, which authorized Article I bankruptcy courts to hear certain matters that constitutionally could only be heard by courts whose judges are protected by the safeguards in Article III. Id. at 84, 102 S.Ct. 2858 (bankruptcy courts do not constitutionally have jurisdiction over claims for “breach of contract and misrepresentation, [because they] involve a right created by state law, a right independent and antecedent to the reorganization petition that conferred jurisdiction upon the Bankruptcy Court”) (emphasis in original). In 1984, Congress responded to Marathon by passing the Bankruptcy Amendments and Federal Judgeship Act (“1984 Amendments”), codified at 28 U.S.C. § 157(b)(2). Those amendments distinguished between core and non-core proceedings. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 60, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). Section 157(a) permits district courts to refer to bankruptcy courts “any or all cases under title 11 and any or all" }, { "docid": "23279854", "title": "", "text": "28 U.S.C. § 157(b)(3). Judge Broz-man ruled that abstention was not warranted and that the proceeding was “non-core.” Defendant then made this motion to withdraw the reference. Subsequent to the filing of this motion, plaintiffs filed a motion for summary judgment. Because the filing of the withdrawal motion did not stay the summary judgment motion, see Bankr.R. 5011(c), Judge Brozman considered it and issued proposed findings of fact and conclusions of law on August 5, 1991, as she is authorized to do pursuant to 28 U.S.C. § 157(c)(1). 1. Motion to Withdraw the Reference Under a standing order issued in July 1984 by Acting Chief Judge Ward pursuant to 28 U.S.C. § 157(c), all bankruptcy cases in the Southern District of New York are referred to the bankruptcy court for this district. See In re Friedberg, 87 B.R. 3, 6 (S.D.N.Y.1988). Section 157(d) permits district courts to withdraw this reference. In pertinent part, it provides that: The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown. 28 U.S.C. § 157(d). Some of the relevant factors in a court’s determination of “cause” include: (1) judicial economy, (2) uniform bankruptcy administration, (3) reduction of forum shopping, (4) economical use of debtors’ and creditors resources, (5) expediting the bankruptcy process, and (6) the presence of a jury demand. Wedtech Corp. v. Banco Popular de Puerto Rico, 94 B.R. 293 (S.D.N.Y.1988). At a hearing in November 1988, Judge Brozman held that this case is a “non-core” proceeding; since that time, defendant has demanded a jury trial. Defendant argues that because this case is a non-core proceeding, because defendant is entitled to a jury trial, and because it has never consented to final determination of this adversary proceeding by the bankruptcy court, this court should withdraw the reference. Defendant is correct that most courts have held that the right to a jury trial constitutes sufficient “cause” for withdrawal within the meaning of § 157(d). See, e.g., Pied Piper Casuals, Inc. v. Ins. Co." }, { "docid": "18742652", "title": "", "text": "for cause shown.” Section 157(d) does not define the term “cause.” District courts in this circuit have considered a number of factors in evaluating cause: whether the claim or proceeding is core or non-core, whether it is legal or equitable, and considerations of efficiency, prevention of forum shopping, and uniformity in the administration of bankruptcy law. See, e.g., In re Kenai Corp., 136 B.R. 59, 61 (S.D.N.Y.1992) (factors include whether action is core or non-core and issues of “(1) judicial economy, (2) uniform bankruptcy administration, (3) reduction of forum shopping, (4) economical use of debtors’ and creditors[’] resources, (5) expediting the bankruptcy process, and (6) the presence of a jury demand”); In re Century Brass Prods., Inc., No. 2:91-79,1992 WL 22191, at *3,1992 U.S. Dist. LEXIS 1277, at *8 (D.Conn. Jan. 7, 1992) (promotion of uniformity in bankruptcy administration, judicial economy, and the Bankruptcy Court’s knowledge of the facts warranted denying motion to withdraw reference); In re Mountain View Coach Line, Inc., No. 88 Civ. 5385, 1989 WL 129479, at *1, 1989 U.S. Dist. LEXIS 12698, at *2 (S.D.N.Y. Oct. 24,1989) (court should consider whether matter is core or non-core and issues of judicial economy); In re Wedtech Corp., 94 B.R. 293, 296 (S.D.N.Y.1988) (uniformity, forum shopping, efficiency, and jury trial considerations all are relevant); see also Holland America Ins. Co. v. Roy, 777 F.2d 992, 999 (5th Cir.1985) (“The district court should consider the goals of promoting uniformity in bankruptcy administration, reducing forum shopping and confusion, fostering the economical use of the debtors’ and creditors’ resources, and expediting the bankruptcy process.”); 1 Collier on Bankruptcy ¶ 3.01[2][e], at 3-64. A district court considering whether to withdraw the reference should first evaluate whether the claim is core or non-core, since it is upon this issue that questions of efficiency and uniformity will turn. For example, the fact that a bankruptcy court’s determination on non-core matters is subject to de novo review by the district court could lead the latter to conclude that in a given case unnecessary costs could be avoided by a single proceeding in the district court. Conversely," }, { "docid": "1109978", "title": "", "text": "Seventh Amendment right to a jury trial. Id. In the present case, the movant, Jean Bob, has satisfied the first two prongs of this analysis. Jean Bob requested a jury trial and refused to consent to a final judgment on the adversary proceeding by the bankruptcy court. Prior to reaching the final element, however, this court must address a threshold procedural matter not raised by the parties. A. 28 U.S.C. § 157(b)(3): Determination of Core or Non-Core Status In the Bankruptcy Amendments and Federal Judgeship Act of 1984, Congress restructured the jurisdiction of the United States Bankruptcy Courts. As part of the amended statutory scheme, a bankruptcy judge is required to determine “whether a proceeding is a core proceeding under this subsection or is a proceeding that is otherwise related to a case under title 11.” 28 U.S.C. § 157(b)(3) (1988). Likewise, Local Rule of Practice 406 echoes section 157(b)(3) by requiring the bankruptcy judge to make the core/non-core determination in compliance with section 157(b)(3). D.Utah R. 406. The bankruptcy court’s conclusions under section 157(b)(3) directly affect that court’s jurisdiction over the matters before it. See 28 U.S.C. § 157(b)(1), (c)(1) (1988). In the present case, the parties submitted a motion requesting the bankruptcy judge to make such a determination, but the bankruptcy court has not yet ruled on the motion. It is apparent from section 157(b)(3)’s language that it is the bankruptcy judge's province to determine whether a proceeding is core or non-core. Hatzel, 106 B.R. at 370; Kaiser Steel Corp. v. Frates (In re Kaiser Steel Corp.), 95 B.R. 782, 786 (Bankr.D.Colo.), aff'd, 109 B.R. 968 (D.Colo.1989), rev’d on other grounds, 911 F.2d 380 (10th Cir.1990); Carr v. Michigan Real Estate Ins. Trust (In re Michigan Real Estate Ins. Trust), 87 B.R. 447, 452 (E.D.Mich.1989). The bankruptcy court’s determination is important because, in reviewing a motion to withdraw the reference for cause, a district court may consider whether the matter is core, or non-core. See Eastern Elec. Sales Co. v. General Elec. Co., 94 B.R. 348, 349 (E.D.Pa.1989); Acolyte Elec. Corp. v. City of New York, 69 B.R." }, { "docid": "6582398", "title": "", "text": "Holland America, the Fifth Circuit enumerated factors to be , considered by the district court in determining whether to withdraw reference to the bankruptcy court. These factors include whether withdrawal would promote uniformity of bankruptcy administration; reduce forum shopping and confusion; conserve debtor and creditor resources; expedite the bankruptcy process; and whether the parties have requested a jury trial. Accord Wed-tech, 94 B.R. at 297; Levy v. Butler, Payne and Griffin (In re Landbank Equity Corp.), 77 B.R. 44, 49 (E.D.Ya.1987). These factors strike an appropriate balance between Congress’ desire to promote judicial economy and the constitutional limitations pointed out in Marathon. Applied to the case at bar these factors counsel against removal. Uniformity of bankruptcy administration will be enhanced by trying this case in the bankruptcy court; forum shopping and confusion will be reduced; it is possible that debtor and creditor resources will' be conserved in the bankruptcy court; the bankruptcy process will likely be expedited; and neither party has requested a jury trial. Central Hudson’s argument that cause exists because this is a non-core proceeding reads language into section 157(d) that is not there, making withdrawal non-discretionary when the proceeding is non-core. Congress demonstrated an ability to make withdrawal non-discretionary in the second sentence of section 157(d), and there is no reason to believe Congress could not have done the same with respect to non-core proceedings. Cf. 1 Collier on Bankruptcy ¶ 3.01[2][e] at p. 3-64 (15th ed 1989) (“By using the permissive ‘may,’ Congress has made it clear that withdrawal is discretionary.”). Central Hudson’s proposed interpretation of section 157(d) is also inconsistent with the rest of section 157. Congress gave the district courts power to refer both core and non-core proceedings to the bankruptcy court. In non-core proceedings the bankruptcy court is given the power to submit proposed findings of fact and conclusions of law to the district court. 28 U.S.C. § 157(c). The bankruptcy court may also enter a final judgment in non-core proceedings when directed to do so by the district court and agreed to by the parties. 28 U.S.C. § 157(c)(2). The discretionary withdrawal" }, { "docid": "4364436", "title": "", "text": "defendants filed a motion to withdraw the reference to the adversary proceeding, and they contend that a consideration of the relevant factors favors withdrawal. They argue that the remaining counts are state law claims which are non-core and for which defendants have demanded jury trials, and that defendants have not consented to the jurisdiction of the bankruptcy court, requiring withdrawal of the reference. ANALYSIS While federal courts have original jurisdiction under 28 U.S.C. § 1334 over all bankruptcy proceedings arising out of Title 11 of the Bankruptcy Code, such cases are automatically referred to bankruptcy judges for the federal district under 28 U.S.C. § 157(a). In re Vicars Ins. Agency, Inc., 96 F.3d 949, 951 (7th Cir.1996). However, under 28 U.S.C. § 157(d), the district court may “withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown.” The court has broad discretion in determining whether to withdraw a reference based on cause, (In re Sevko, Inc., 143 B.R. 114, 115 (N.D.Ill.1992)), but at the same time, permissive withdrawal is the exception, rather than the rule, as bankruptcy jurisdiction is “designed to provide a single forum for dealing with all claims to the bankrupt’s assets.” Xonics v. First Wisconsin Financial Corp., 813 F.2d 127, 131 (7th Cir. 1987). Hence, the movant bears the burden of establishing that withdrawal is appropriate. In re HA 2003, 2004 WL 609799, *2, 2004 U.S. Dist. LEXIS 4674, *5 (N.D.Ill.2004) (citations omitted). The phrase “for cause shown” is not defined by the statute, but has been interpreted by case law to encompass consideration of a number of factors, including whether the claim or proceeding is core or non-core, considerations of judicial economy, convenience, the particular court’s knowledge of the facts, promoting the uniformity and efficiency of bankruptcy administration, reduction of forum shopping and confusion, conservation of debtor and creditor resources, and whether the parties requested a jury trial, In re Sevko, 143 B.R. at 117, However, the most important factor is whether a proceeding is core or non-core," }, { "docid": "1109982", "title": "", "text": "(1991)). Specifically, the Tenth Circuit rejected the Second Circuit’s view that the bankruptcy court’s power to issue final orders in core matters necessarily included the power to conduct jury trials. Id. at 391. In short, regardless of whether the matter is core, or non-core, the district court must conduct the jury trial if it is required by the Seventh Amendment. With respect to the case at hand, this court must ascertain whether the bankruptcy court’s determination that the adversary proceeding is core, or non-core, is a prerequisite to the court’s consideration of whether the reference should be withdrawn. The court believes that it is not. In simple terms, the bankruptcy court’s conclusions regarding the nature of the proceeding are irrelevant if the motion to withdraw the reference is based upon the movant’s Seventh Amendment right to a jury trial. Regardless of the bankruptcy court’s determination under section 157(b)(3), the In re Kaiser Steel decision denies it the authority to retain jurisdiction if the movant has a right to a jury trial. Because the bankruptcy court cannot retain the matter, this court need not consider the effect withdrawal of the reference will have upon judicial economy. Thus, the bankruptcy court’s finding under section 157(b)(3) is unnecessary for this court to determine whether it may withdraw the reference for cause. Consequently, this court must consider whether Jean Bob has a right to a jury trial for the claim filed by the Trustee. B. The Seventh Amendment Right to a Jury Trial The Trustee argues that Jean Bob is not entitled to a jury trial because Jean Bob waived that right by filing an affirmative defense of “setoff” in its Answer. See Mem. in Opp’n to Mot. to Withdraw the Reference at 5-7. In effect, the Trustee argues that a claim for setoff is a counterclaim which, like a formal proof of claim, seeks affirmative relief against the estate. Id. The Trustee maintains that, under the reasoning expressed in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), such a claim waives the right to a jury trial" }, { "docid": "20241550", "title": "", "text": "76, 77, 91, 100, 106, 110). Furthermore, at oral argument, counsel for Defendant Frost Brown Todd indicated that the moving Defendants advised Plaintiff early on that they intended to file motions for withdrawal of the reference. None of the objecting parties assert that the motions were untimely, and the Court finds that the motions are timely. B. Cause for Withdrawal of the Reference A district court may grant discretionary withdrawal of reference “for cause shown.” 28 U.S.C. § 157(d). Although “cause” is not defined in the Bankruptcy Code, most courts consider the following factors to determine whether cause exists: (1) judicial economy; (2) uniformity in bankruptcy administration; (3) reducing forum shopping and confusion; (4) fostering economical use of the debtor’s and creditor’s resources; (5) expediting the bankruptcy process; and (6) the presence of a jury demand. In re Angelucci, No. 09-70, 2009 WL 798805, at *3 (E.D.Ky. Mar. 23, 2009) (citing Big Rivers Elec. Corp. v. Green River Coal Co., Inc., 182 B.R. 751, 754 (W.D.Ky.1995)). Other courts in this circuit have found that discretionary withdrawal of reference requires a “compelling” cause. See In re Washington Mfg. Co., 133 B.R. 113, 116 (M.D.Tenn.1991) (“[Ojnly a compelling cause warrants withdrawal from the automatic reference to bankruptcy under the non-mandatory provision.”); In re Onyx Motor Car Corp., 116 B.R. 89, 91 (S.D.Ohio 1990) (“Let it be clear, without truly exceptional and compelling circumstances, a motion for withdrawal of reference will not be well received by this Court.”). Indeed, when considering § 157(d), Congress indicated that there was no intention to allow this subsection to become “an escape hatch through which most bankruptcy matters will be removed to the District Court from the bankruptcy court.” In re Onyx Motor Car Corp., 116 B.R. at 91 (quoting 100 Cong. Rec. H1850) (internal quotations omitted). Furthermore, in considering whether a withdrawal motion should be granted, “whether a proceeding is core or non-core ... is a central question.” In re Black Diamond Min. Co., LLC, 2010 WL 5173271, at *2; see also e.g., Boyd v. King Par, LLC, No. 1:11-CV-1106, 2011 WL 5509873, at *1 (W.D.Mich." }, { "docid": "4172162", "title": "", "text": "America Ins. Co. v. Succession of Roy, 777 F.2d 992, 999 (5th Cir.1985)); see also In re Ponce Marine Farm, Inc., 172 B.R. at 725 n. 3 (“The First Circuit has not yet addressed the “cause” requirement. Nevertheless, most courts facing the issue have adopted the above enumerated factors articulated by the Fifth Circuit in Holland America.”). In determining judicial economy, courts weigh the preponderance of “core” versus “noncore” claims. See generally Orion Pictures Corp. v. Showtime Networks, Inc. (In re Orion Pictures Corp.), 4 F.3d 1095, 1101-02 (2d Cir.1993), cert. dismissed, 511 U.S. 1026, 114 S.Ct. 1418, 128 L.Ed.2d 88 (1994). “[Because bankruptcy courts cannot conduct jury trials on non-core matters, withdrawal is mandated if a litigant is entitled to a jury trial on such matters.” In re Larry’s Apartment, 210 B.R. at 472 (citing In re Cinematronics, Inc., 916 F.2d 1444, 1451 (9th Cir.1990)). However, “[w]here a defendant has made a claim on the estate, the defendant has submitted to the process of allowance and disallowance of claims adjudicable by the bankruptcy court.” In re Larry’s Apartment, 210 B.R. at 473; see also, Langenkamp v. Culp, 498 U.S. 42, 43-45, 111 S.Ct. 330, 331, 112 L.Ed.2d 343 (1990); Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). Until a determination of the core/noncore nature of the claims is made by the bankruptcy court, the factors affecting withdrawal cannot properly be analyzed and, therefore, this Court will remand the case to the bankruptcy court for further proceedings, including preliminary determinations providing the basis for the bankruptcy court’s jurisdiction over this adversarial proceeding. Core Proceedings The bankruptcy court should determine, in the first instance, whether it has jurisdiction over this adversarial proceeding, either in part or in its entirety. The Bankruptcy Code provides: “The bankruptcy judge shall determine ... whether a proceeding is a core proceeding under this subsection or is a proceeding that is otherwise related to a case under title 11.” 28 U.S.C. § 157(b)(3). Core proceedings include, inter alia, matters concerning the administration of the estate; allowance or disallowance of claims against" }, { "docid": "2941047", "title": "", "text": "In Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), the Supreme Court held unconstitutional the Bankruptcy Act of 1978, which authorized Article I bankruptcy courts to hear certain matters that constitutionally could only be heard by courts whose judges are protected by the safeguards in Article III. Id. at 84, 102 S.Ct. 2858 (bankruptcy courts do not constitutionally have jurisdiction over claims for “breach of contract and misrepresentation, [because they] involve a right created by state law, a right independent and antecedent to the reorganization petition that conferred jurisdiction upon the Bankruptcy Court”) (emphasis in original). In 1984, Congress responded to Marathon by passing the Bankruptcy Amendments and Federal Judgeship Act (“1984 Amendments”), codified at 28 U.S.C. § 157(b)(2). Those amendments distinguished between core and non-core proceedings. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 60, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). Section 157(a) permits district courts to refer to bankruptcy courts “any or all cases under title 11 and any or all proceedings arising under title 11 or aris ing in or related to a case under title 11....” 28 U.S.C. § 157(a). According to § 157(d), “[t]he district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown.... ” This provision of § 157(d) provides for discretionary withdrawal by the district court for cause shown, in contrast to a mandatory withdrawal provision not at issue here. Although § 157(d) does not define “cause,” the Court’s analysis of defendant’s motion is guided by In re Orion Pictures Corp., 4 F.3d 1095, 1101 (2d Cir.1993), in which the Second Circuit set forth the following factors for consideration: “whether the claim or proceeding is core or non-core, whether it is legal or equitable, and considerations of efficiency, prevention of forum shopping, and uniformity in the administration of bankruptcy law.” Where a district court withdraws the reference of a proceeding from the bankruptcy court, it has plenary jurisdiction over the" }, { "docid": "18742651", "title": "", "text": "S.Ct. 2858, 73 L.Ed.2d 598. Accordingly, the Court in Marathon found unconstitutional Congress’s broad grant of jurisdiction to the bankruptcy courts to adjudicate such claims in the Bankruptcy Act of 1978. In response to Marathon, Congress enacted 28 U.S.C. § 157. See In re Ben Cooper, Inc., 896 F.2d 1394, 1398 (2d Cir.) (Ben Cooper I), vacated and remanded, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated on remand, Ben Cooper II, supra. Section 157 classifies matters as either “core proceedings,” which the bankruptcy court may “hear arid determine” and on which the court “may enter appropriate orders and judgments,” § 157(b)(1), or “non-core proceedings,” which the bankruptcy court may hear, but for which the bankruptcy court is only empowered to submit proposed findings of fact and conclusions of law to the district court for de novo review, § 157(c)(1). Under 28 U.S.C. § 157(d), a “district court may withdraw ... any case or proceeding referred [to the bankruptcy court] on its own motion or on a timely motion of any party, for cause shown.” Section 157(d) does not define the term “cause.” District courts in this circuit have considered a number of factors in evaluating cause: whether the claim or proceeding is core or non-core, whether it is legal or equitable, and considerations of efficiency, prevention of forum shopping, and uniformity in the administration of bankruptcy law. See, e.g., In re Kenai Corp., 136 B.R. 59, 61 (S.D.N.Y.1992) (factors include whether action is core or non-core and issues of “(1) judicial economy, (2) uniform bankruptcy administration, (3) reduction of forum shopping, (4) economical use of debtors’ and creditors[’] resources, (5) expediting the bankruptcy process, and (6) the presence of a jury demand”); In re Century Brass Prods., Inc., No. 2:91-79,1992 WL 22191, at *3,1992 U.S. Dist. LEXIS 1277, at *8 (D.Conn. Jan. 7, 1992) (promotion of uniformity in bankruptcy administration, judicial economy, and the Bankruptcy Court’s knowledge of the facts warranted denying motion to withdraw reference); In re Mountain View Coach Line, Inc., No. 88 Civ. 5385, 1989 WL 129479, at *1, 1989 U.S. Dist. LEXIS" }, { "docid": "12670654", "title": "", "text": "if the Coverage Issue is a core matter, Travelers’ contention that judicial economy is promoted by referral is flawed since this court can finally adjudicate the matter sub judice. Another consequence follows from the eore/non-core distinction. If the Coverage Issue is non-core, Travelers is entitled to a jury trial, and bankruptcy courts may not conduct jury trials in non-core matters. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). If the matter is core, Travelers may or may not be entitled to a jury trial, and the bankruptcy court may conduct such a trial with the consent of the parties. As Travelers has not filed an answer to the Complaint, it has not had to take a position on whether it will demand a jury trial. Travelers relies on its right to demand a jury trial and its refusal to consent to this court’s conduct of such trial as a basis to remove this matter to the district court. Notably, however, Travelers does so with the acknowledgment that once before the district court, it may not elect to actually demand a jury trial. The Debtor acknowledges that if this matter is non-core or core with a right of jury trial and Travelers demanded a jury trial, withdrawal of the reference would be appropriate. However, the Debtor contends that the Coverage Issue is a core matter with no right of jury trial or alternatively that Travelers has waived its right to one, and therefore presents no basis for withdrawal of the reference. I agree that withdrawal of the reference is not appropriate although not for the precise reasons articulated by the Debtor. c. The non-exclusive definition of core proceedings is set forth in § 157(b)(2)(A) through (0). Because of the generality of subsections (A) “matters concerning administration of the estate” and (0) “other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor relationship... courts have frequently been asked to set the parameters of core jurisdiction consistent with the constitutional mandate of Northern Pipeline Construction Co. v. Marathon Pipe Line" }, { "docid": "10786862", "title": "", "text": "Plaintiffs claims, with the exception of the state attorneys’ fees remedy, are considered core. The core nature of the proceedings predominates, weighing against withdrawal of the reference. C. Jury Demand “If the right to a jury trial applies in a proceeding that may be heard ... by a bankruptcy judge, the bankruptcy judge may conduct the jury trial if specially designated to exercise such jurisdiction by the district court and with the express consent of all the parties.” 28 U.S.C. § 157(e). As a result, when one party requests a jury trial, but does not consent to conducting the trial in the bankruptcy court, this may justify withdrawal of the reference. See In re Nu Van Tech., Inc., 2003 WL 23785355, at *2 (citing Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 47-48, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989)); see In re Clay, 35 F.3d 190, 195, 197-98 (5th Cir.1994). Here, neither party has made a jury demand. Therefore, withdrawal of the reference on these grounds is not applicable and does not weigh toward withdrawal of the reference. D. Judicial Economy Where the bankruptcy court is intimately familiar with the types of claims filed as well as the specifics of the claim, the potential expediency of the bankruptcy court resolution of the issues favors denial of motion to withdraw the reference. In re The Babcock & Wilcox Co., 2001 WL 725318, at *7 (E.D.La. June 26, 2001); In re Efficient Solutions, Inc., 2000 WL 1876356, at *6 (E.D.La. Dec.20, 2000) (denying withdrawal, in part, because withdrawal would serve only to prolong the litigation and expend valuable party and judicial resources). But see Liljeberg Enters., Inc., 2000 WL 63307, at *4 (holding withdrawal supported where district court was familiar with the claims and the relationship of the parties); Mirant Corp., 337 B.R. at 123 (holding that when a claim will neither interfere with nor advance the bankruptcy process, expediting the bankruptcy process is not relevant to the withdrawal decision). This adversary proceeding has been pending in the bankruptcy court since February 26, 2008. Over the past year, the bankruptcy court has" }, { "docid": "4364437", "title": "", "text": "B.R. 114, 115 (N.D.Ill.1992)), but at the same time, permissive withdrawal is the exception, rather than the rule, as bankruptcy jurisdiction is “designed to provide a single forum for dealing with all claims to the bankrupt’s assets.” Xonics v. First Wisconsin Financial Corp., 813 F.2d 127, 131 (7th Cir. 1987). Hence, the movant bears the burden of establishing that withdrawal is appropriate. In re HA 2003, 2004 WL 609799, *2, 2004 U.S. Dist. LEXIS 4674, *5 (N.D.Ill.2004) (citations omitted). The phrase “for cause shown” is not defined by the statute, but has been interpreted by case law to encompass consideration of a number of factors, including whether the claim or proceeding is core or non-core, considerations of judicial economy, convenience, the particular court’s knowledge of the facts, promoting the uniformity and efficiency of bankruptcy administration, reduction of forum shopping and confusion, conservation of debtor and creditor resources, and whether the parties requested a jury trial, In re Sevko, 143 B.R. at 117, However, the most important factor is whether a proceeding is core or non-core, as efficiency, uniformity and judicial economy concerns are largely subsumed within it. In re Conseco, 324 B.R. at 53. “[A] proceeding is core ... if it invokes a substantive right provided by Chapter 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case.” Coe-Truman Techs. v. United States Gov’t (In re Coe-Truman Techs.), 214 B.R. 183, 187 (N.D.Ill.1997) (quoting Diamond Mortgage Corp. of Illinois v. Sugar, 913 F.2d 1233, 1239 (7th Cir.1990)). Non-core proceedings are those only marginally related to the bankruptcy, which often are state law causes of action. In re Conseco Finance Corp., 324 B.R. 50, 53-54 (N.D.Ill.2005). The bankruptcy judge renders the final decision in core proceedings, subject to appeal to the district court. 28 U.S.C. § 157(b)(1), (c)(2). In contrast, in non-core proceedings the bankruptcy judge merely makes recommendations that are subject to de novo review in the district court. § 157(c)(1). As the Trustee has voluntarily dismissed the fraudulent transfer claim, all of the Trustee’s remaining claims are ones" }, { "docid": "1109983", "title": "", "text": "cannot retain the matter, this court need not consider the effect withdrawal of the reference will have upon judicial economy. Thus, the bankruptcy court’s finding under section 157(b)(3) is unnecessary for this court to determine whether it may withdraw the reference for cause. Consequently, this court must consider whether Jean Bob has a right to a jury trial for the claim filed by the Trustee. B. The Seventh Amendment Right to a Jury Trial The Trustee argues that Jean Bob is not entitled to a jury trial because Jean Bob waived that right by filing an affirmative defense of “setoff” in its Answer. See Mem. in Opp’n to Mot. to Withdraw the Reference at 5-7. In effect, the Trustee argues that a claim for setoff is a counterclaim which, like a formal proof of claim, seeks affirmative relief against the estate. Id. The Trustee maintains that, under the reasoning expressed in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), such a claim waives the right to a jury trial and subjects Jean Bob to the jurisdiction of the bankruptcy court. Id. at 4. In response, Jean Bob contends that setoff is an affirmative defense which seeks only to reduce, or offset, the amount sought by the Trustee in the adversary proceeding. See Reply Mem. to Pi’s Mem. in Opp. to Mot. to Withdraw the Reference at 4-7. This court must decide, therefore, whether a setoff raised as an affirmative defense waives the Seventh Amendment right to a jury trial. 1. Nature of a Setoff Claim The Tenth Circuit has considered the nature of a claim for setoff under Bankruptcy Code section 553(a). Davidovich v. Welton (In re Davidovich), 901 F.2d 1533 (10th Cir.1990); Turner v. United States (In re G.S. Omni Corp.), 835 F.2d 1317 (10th Cir.1987); Ashland Petroleum Co. v. Appel (In re B & L Oil Co.), 782 F.2d 155 (10th Cir.1986). In Davidovich, the debtor, an attorney, commenced an action against his former partner to recover an amount awarded to him in arbitration. Id. at 1535. In response, the former partner" }, { "docid": "1107024", "title": "", "text": "one. Thus, only a compelling cause warrants withdrawal from the automatic reference to bankruptcy under the non-mandatory provision. The Court examines below whether a jury demand is sufficient cause to withdraw and holds that it is not. B. Right to a Jury Trial Normally, the bankruptcy court is an appropriate forum for initially determining whether there is a right to trial by jury of issues for which a jury trial is demanded. See Bankr.Rule 9015(b)(3); American Universal Insurance Co. v. Pugh, 821 F.2d 1352, 1355 (9th Cir.1987). The Bankruptcy Rules, however, state only that the bankruptcy court “may” consider whether a jury trial is warranted. Bankr.Rule 9015(b)(3). They do not restrict this consideration to bankruptcy judges, presumably because, before it refers bankruptcy claims under section 157(a), the district court has the initial jurisdiction to hear such claims. Since the trustee’s motion to withdraw is based on the “cause” that he has a right to a jury trial on the claims he wishes to withdraw, the Court will decide whether the trustee has a right to a jury trial in order to determine whether he has shown cause to withdraw. The controlling case on whether the trustee has a right to a jury trial on his fraudulent conveyance claim is Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). In Granfinanciera, the Supreme Court held that a creditor who had not filed a claim in the debtor’s bankruptcy proceedings did have a Seventh Amendment right to a jury trial when the trustee of the bankruptcy estate sued the creditor in district court to recover monies for a fraudulent conveyance under 11 U.S.C. § 548(a)(2). 109 S.Ct. at 2802. The Supreme Court based its decision, however, on the fact that the creditor had not filed a claim in the bankruptcy proceeding, and thus the trustee’s fraudulent conveyance claim did not arise “‘as part of the process of allowance and disal-lowance of claims.' ” Id. at 2799 (quoting Schoenthal v. Irving Trust Co., 287 U.S. 92, 53 S.Ct. 50, 77 L.Ed. 185 (1932)). Since Citicorp has filed a" }, { "docid": "1139958", "title": "", "text": "bankruptcy judge’s proposed findings and conclusions, as well as, after reviewing de novo those matters to which any party has timely and specifically objected. However, as set forth in 28 U.S.C. § 157(c)(2), the bankruptcy judge may enter a final order in a non-core proceeding with the consent of all the parties subject to the traditional clearly erroneous standard of appellate review as to the factual findings. An excellent case discussing the distinction between core and non-core proceedings in Matter of Wood, 825 F.2d 90 (5th Cir. 1987). This case also discusses such other jurisdictional tactics as discretionary and mandatory abstention, as well as, discretionary and mandatory withdrawal of the reference to the bankruptcy court. In this particular proceeding, the Chapter 7 case trustee has initiated a cause of action in an attempt to bring funds into the bankruptcy estate for distribution to the estate creditors in conformity with the priorities set forth in the Bankruptcy Code. If the plaintiff were the Chapter 11 debtor in possession, rather than the trustee, the decision as to whether this proceeding was core or non-core would be different. The facts in this proceeding, in the opinion of this court, are distinguishable from those in the Supreme Court’s decision, Northern Pipeline Construction Co. v. Marathon Pipe Une Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Consequently, the court reiterates its earlier conclusion that this is a core proceeding. The court must now address the issue of whether a defendant in an adversary proceeding, who has not filed a claim against the bankruptcy estate, is entitled to a jury trial in the bankruptcy court. Although this has been a fairly controversial issue for several years, the Supreme Court’s decision in Granfinanciera, S.A. v. Nordberg (In re Chase and Sanborn Corp.), 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), did little to resolve the controversy. In Granfinanciera, Nord-berg, the bankruptcy trustee, filed a fraudulent transfer cause of action against Granfinanciera, S.A., and Medex, Ltd., two Columbian entities. Both of the defendants demanded a trial by jury. The bankruptcy court denied the" }, { "docid": "10694925", "title": "", "text": "non-core proceedings, the District Court reserves actual decision-making authority and the Bankruptcy Court’s role is limited to submitting proposed findings of fact and conclusions of law, subject to de novo review. Id. § 157(c)(1); see Halper v. Halper, 164 F.3d 830, 836 & n. 7 (3d Cir.1999). “Efficiency [will be] enhanced by withdrawal of the reference if non-core issues predominate.” In re General Teamsters, Warehousemen and Helpers Union Local 890, 124 F.3d 999, 1008 (9th Cir.1997). The Individual Defendants argue that invocation of their right to a jury trial is grounds for withdrawal. To support their position, they cite the United States Supreme Court’s decision in Granfinanciera v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). In Granfinanciera, the Supreme Court laid down the framework for applying the Seventh Amendment jury trial right in the context of adversary proceedings in bankruptcy. For purposes of the present motion, the Court need not, and does not determine the viability of the Individual Defendants’ jury right claims. It will suffice to say that the arguments raised concerning the equitable and/or legal origins of actions to pierce the corporate veil, and the implications of those origins on jury trial rights would be more properly resolved by this Court given its comparative expertise in dealing with issues of due process. Other considerations of judicial economy and deterrence of forum shopping indicate that withdrawal is appropriate. The partial withdrawal of the reference of the Adversary Proceeding will also speed the bankruptcy to resolution and conserve scarce resources of the parties and of both courts. Because this proceeding entails exclusively state law claims against a non-debtor, it is in the Court’s best interest to adjudicate the nonbankruptcy dispute once, while the Bankruptcy Court contin ues to administer the chapter 11 reorganization and conduct other common bankruptcy proceedings. Debtor argues that the Committee and the Individual Defendants are simply forum shopping because the same issues that arise in the successor liability claims have already been litigated in the Committee’s substantive consolidation motion. Debtor’s arguments are unpersuasive. The successor liability issues arise in a separate adversary" } ]

[ { "docid": "14203409", "title": "", "text": "invention in substantial detail, reviewed the governing statutes, and outlined the testimony of petitioner at the hearing conducted by the Board. It appraised the testimony of respondent’s expert witness, reached a determination that petitioner was not entitled to an award and set forth a statement of its reasons for so concluding which encompasses some ten pages of the opinion. Petitioner thereafter formally requested the Commission to review the Compensation Board’s decision and by order dated May 29, 1967, the Commission denied that request. II We are urged to overrule the Commission’s holding that petitioner is not entitled to an award upon the ground that this conclusion is arbitrary and capricious and lacks substantial evidence in the record supporting or justifying this ruling. We were told, moreover, on oral argument that the factual basis for the Commission’s holding is clearly and completely erroneous as a matter of scientific knowledge and phenomenon. The briefs and supporting documents filed by both parties are extensively devoted to presentation and argument as to the correctness, or the falsity of scientific principles related to radioactive material and products, atomic energy, irradiation, the nucleus of the atom and the action and reaction of its protons and neutrons. We are therefore confronted at the very threshold of this case with the ever-recurring question of the scope and extent of our authority to set aside the ruling of an administrative agency. Despite our daily diet of challenges to administrative agency action and our resulting repeated efforts to articulate the limits of judicial review of such actions we nevertheless are continually called upon to substitute our judgment on factual issues for that of the agency charged by Congress with the initial responsibility of making, evaluating, and acting upon those facts. It is well settled that the fact-finding function is within the exclusive province of the administrative agency. We appear unable to establish a substantial recognition at the Bar that “[t]he judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.” Rochester Telephone Corp. v. United States, 307 U.S. 125," } ]

[ { "docid": "8995358", "title": "", "text": "Natural Gas Co., 320 U.S. 591, 602, 64 S.Ct. 281, 288, 88 L.Ed. 333 (1944). Our function is not to impose our own standards of reasonableness upon the Commission, but rather to ensure that the Commission’s order is supported by substantial record evidence and is neither arbitrary, capricious, nor an abuse of discretion. See 5 U.S.C. § 706(A), (E) (1970); Goodman v. Public Service Commission, 162 U.S.App.D.C. 74, 497 F.2d 661 (1974). The thrust of petitioners’ argument is actually that the Commission’s award of a 10.5% return on AT&T’s equity was arbitrary and capricious. That standard has recently been interpreted by the Supreme Court in Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974): Under the “arbitrary and capricious” standard the scope of review is a narrow one. A reviewing court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. . . ” Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 416 [91 S.Ct. 814, at 824]. The agency must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168 [83 S.Ct. 239, 246, 9 L.Ed.2d 207] (1962). While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947), we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 [65 S.Ct. 829, 836, 89 L.Ed. 1206] (1945). Id. at 285-86, 95 S.Ct. at 442. Applying that standard here, we find that while the Commission explained in depth its reasons for not accepting AT&T’s presentation, it was not as fastidious in explaining why a 10.5% rate of return was, in fact, justified. Paragraph 84, where the Commission announces its holding, states: There are many techniques for producing useful factual information" }, { "docid": "686301", "title": "", "text": "directed, essentially, at discretionary findings by the Commission. As conceded by plaintiffs, it is not the function of the Court in reviewing an injury determination of the Commission under the Antidumping Act to weigh the evidence or substitute its judgment for that of the Commission. City Lumber Co., supra, 457 F.2d at 993, 59 CCPA at 92; Imbert Imports, supra, 475 F.2d at 1191, 60 CCPA at 126. Moreover, since the Commission based its determination on a consideration of appropriate indicia of injury, absent any clear error of judgment (and I find none), the Commission’s determination cannot be regarded as arbitrary and capricious. Bowman Transportation, Inc., supra, 419 U.S. at 285-86, 95 S.Ct. at 441-42; Citizens to Preserve Overton Park, Inc., supra, 401 U.S. at 416, 91 S.Ct. at 823. With reference to the limitation on the Court’s power to review the evidence before the Commission, the party-in-interest has called attention to Deutsch v. United States Atomic Energy Commission, 130 U.S.App.D.C. 339, 342, 401 F.2d 404, 407 (C.A.D.C. 1968), wherein the Court of Appeals made this relevant observation: We are urged to overrule the [Atomic Energy] Commission’s holding that petitioner is not entitled to an award upon the ground that this conclusion is arbitrary and capricious and lacks substantial evidence in the record supporting or justifying this ruling. We were told, moreover, on oral argument that the factual basis for the Commission’s holding is clearly and completely erroneous as a matter of scientific knowledge and phenomenon. The briefs and supporting documents filed by both parties are extensively devoted to presentation and argument as to the correctness, or the falsity of scientific principles related to radioactive material and products, atomic energy, irradiation, the nucleus of the atom and the action and reaction of its protons and neutrons. We are therefore confronted at the very threshold of this case with the ever-recurring question of the scope and extent of our authority to set aside the ruling of an administrative agency. Despite our daily diet of challenges to administrative agency action and our resulting repeated efforts to articulate the limits of judicial review" }, { "docid": "5107205", "title": "", "text": "419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974), reh. denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1975); Citizens to Preserve Overton Park, Inc., et al. v. Volpe, Secretary of Transportation, et al., 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Addressing the question of the scope and extent of judicial power to set aside the ruling of an administrative agency, the Court of Appeals made this relevant observation in Deutsch v. United States Atomic Energy Commission, 401 F.2d 404, 407 (C.A.D.C.1968): We are urged to overrule the [Atomic Energy] Commission’s holding that petitioner is not entitled to an award upon the ground that this conclusion is arbitrary and capricious and lacks substantial evidence in the record supporting or justifying this ruling. We were told, moreover, on oral argument that the factual basis for the Commission’s holding is clearly and completely erroneous as a matter of scientific knowledge and phenomenon. The briefs and supporting documents filed by both parties are extensively devoted to presentation and argument as to the correctness, or the falsity of scientific principles related to radioactive material and products, atomic energy, irradiation, the nucleus of the atom and the action and reaction of its protons and neutrons. We are therefore confronted at the very threshold of this case with the ever-recurring question of the scope and extent of our authority to set aside the ruling of an administrative agency. Despite our daily diet of challenges to administrative agency action and our resulting repeated efforts to articulate the limits of judicial review of such actions we nevertheless are continually called upon to substitute our judgment on factual issues for that of the agency charged by Congress with the initial responsibility of making, evaluating, and acting upon those facts. It is well settled that the fact-finding function is within the exclusive province of the administrative agency. We appear unable to establish a substantial recognition at the Bar that “[t]he judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative" }, { "docid": "5107203", "title": "", "text": "as a matter of law for the Commission not to have reached an affirmative injury determination in light of the severe margins of dumping, the consequential unfair competitive advantage enjoyed by the LTFV imports, and the significant levels of market penetration, particularly when said penetration was accomplished through the competitive leverage created via the LTFV pricing and was accompanied by severe market disruptions”. (Memorandum, at 14.) These “market disruptions”, plaintiffs argue, are supported by evidence in the record of high and rising market penetration of the imported tools which caused serious declines in domestic industry profits, lost sales, price suppression, sharp declines in domestic production and shipments, and sharp curtailment in investment in industrial capacity. Plaintiffs further urge that the record shows that the sales of the LTFV Japanese hand tools have precluded the entry of certain domestic producers into the low-quality, low-price hand tools market. Lastly, plaintiffs characterize the Commission’s finding of a lack of competition between the LTFV imports and the domestically produced hand tools as one of the critical deficiencies in the Commission’s decision. In short, plaintiffs insist that had the Commission concluded that the LTFV imports competed directly with the domestic hand tools, it would have been obligated to find, as a matter of law, that an industry in the United States was being or was likely to be injured. It is evident that plaintiffs’ arguments essentially challenge discretionary findings by the Commission. Fundamentally, it is not the function of the Court in reviewing an injury determination of the Commission under the Antidumping Act to weigh the evidence or substitute its judgment for that of the Commission. City Lumber Co. et al. v. United States, 59 CCPA 89, C.A.D. 1045, 457 F.2d 991 (1972); Imbert Imports, Inc., et al. v. United States, 60 CCPA 123, C.A.D. 1094, 475 F.2d 1189 (1973). Moreover, since the Commission based its determination on a consideration of appropriate indicia of injury, absent any clear error of judgment (and I find none), the Commission’s determination cannot be regarded as arbitrary or capricious. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., et al," }, { "docid": "686303", "title": "", "text": "of such actions we nevertheless are continually called upon to substitute our judgment on factual issues for that of the agency charged by Congress with the initial responsibility of making, evaluating, and acting upon those facts. It is well settled that the fact-finding function is within the exclusive province of the administrative agency. We appear unable to establish a substantial recognition at the Bar that “[t]he judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.” Rochester Telephone Corp. v. United States, 307 U.S. 125, at 146, 59 S.Ct. 754, at 765, 83 L.Ed. 1147 (1939). [Emphasis added; footnote omitted.] In light of the above-cited decisions, it would be impermissible for me to substitute my judgment for that of the Commission or to reweigh the evidence as to specific factual findings. After a careful and searching review of the administrative record, I hold: that the factual findings of the Commission have a rational basis in fact; that the Commission applied the proper legal standards; and that the Commission considered appropriate economic and financial factors in making its negative determination. Accordingly, the Commission’s determination is not arbitrary or capricious, as claimed by plaintiffs. IV We now reach plaintiffs’ contention that the Commission’s injury determination is not supported by substantial evidence. As we have seen, the substantial evidence standard of review has been adverted to by the courts in reviewing the Commission’s findings and determination under the Antidumping Act. See City Lumber, supra, 457 F.2d at 996, 59 CCPA at 95; Imbert Imports, supra, 475 F.2d at 1192, 60 CCPA at 127; Pasco Terminals, Inc., supra, 477 F.Supp. 201, 83 Cust.Ct. at-. Consolo v. Federal Maritime Commission et al., 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966), is a leading case defining “substantial evidence”. There, the Supreme Court observed (at 619-20, 86 S.Ct. at 1026): * * * We have defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229," }, { "docid": "14203410", "title": "", "text": "principles related to radioactive material and products, atomic energy, irradiation, the nucleus of the atom and the action and reaction of its protons and neutrons. We are therefore confronted at the very threshold of this case with the ever-recurring question of the scope and extent of our authority to set aside the ruling of an administrative agency. Despite our daily diet of challenges to administrative agency action and our resulting repeated efforts to articulate the limits of judicial review of such actions we nevertheless are continually called upon to substitute our judgment on factual issues for that of the agency charged by Congress with the initial responsibility of making, evaluating, and acting upon those facts. It is well settled that the fact-finding function is within the exclusive province of the administrative agency. We appear unable to establish a substantial recognition at the Bar that “[t]he judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.” Rochester Telephone Corp. v. United States, 307 U.S. 125, at 146, 59 S.Ct. 754, at 765, 83 L.Ed. 1147 (1939). The basis of petitioner’s argument is, however, almost exclusively factual in nature, since the thrust of this appeal is that the Commission must be reversed because it patently misconstrued the facts. In asking this Court to reverse the Commission’s decision petitioner urges that this agency’s action was arbitrary and capricious. The burden petitioner has assumed in this case is by no means a light one. Petitioner has not met this burden and he has failed to show that the Compensation Board’s construction of the facts was either arbitrary and capricious or that it was not supported by substantial evidence. That the facts in a case are possibly susceptible to two different interpretations does not render the agency decision unsupported by substantial evidence. A purview of the entire record in this case reveals that the decision is indeed grounded in logic and reason, supported by generally accepted scientific principles, and buttressed by a careful analysis of all the facts and factors involved. In a case" }, { "docid": "686300", "title": "", "text": "tools resulting in significant levels of market penetration of the imports accompanied by serious market disruption in the form of lost sales, preclusion from major domestic markets, restraints on investment in productive capacity, price suppression, decreased profit margins, and slowdowns in domestic shipments and production. Further, plaintiffs argue that the Commission’s findings in support of its negative determination have no rational basis in fact, are arbitrary, capricious and not supported by substantial evidence. Plaintiffs are particularly critical of the Commission’s findings concerning the character of the United States market for the tools in question and the respective natures of the domestically produced tools and the imports sold at LTFV. These findings are relevant to the competitiveness of the LTFV imports with the domestically produced hand tools. On this aspect, plaintiffs urge that had the Commission found that the LTFV imports competed directly with the domestic hand tools, it would have been obligated to find injury as a matter of law. I agree with the party-in-interest’s contention that plaintiffs’ arguments relating to the administrative record are directed, essentially, at discretionary findings by the Commission. As conceded by plaintiffs, it is not the function of the Court in reviewing an injury determination of the Commission under the Antidumping Act to weigh the evidence or substitute its judgment for that of the Commission. City Lumber Co., supra, 457 F.2d at 993, 59 CCPA at 92; Imbert Imports, supra, 475 F.2d at 1191, 60 CCPA at 126. Moreover, since the Commission based its determination on a consideration of appropriate indicia of injury, absent any clear error of judgment (and I find none), the Commission’s determination cannot be regarded as arbitrary and capricious. Bowman Transportation, Inc., supra, 419 U.S. at 285-86, 95 S.Ct. at 441-42; Citizens to Preserve Overton Park, Inc., supra, 401 U.S. at 416, 91 S.Ct. at 823. With reference to the limitation on the Court’s power to review the evidence before the Commission, the party-in-interest has called attention to Deutsch v. United States Atomic Energy Commission, 130 U.S.App.D.C. 339, 342, 401 F.2d 404, 407 (C.A.D.C. 1968), wherein the Court of Appeals made" }, { "docid": "686304", "title": "", "text": "and that the Commission considered appropriate economic and financial factors in making its negative determination. Accordingly, the Commission’s determination is not arbitrary or capricious, as claimed by plaintiffs. IV We now reach plaintiffs’ contention that the Commission’s injury determination is not supported by substantial evidence. As we have seen, the substantial evidence standard of review has been adverted to by the courts in reviewing the Commission’s findings and determination under the Antidumping Act. See City Lumber, supra, 457 F.2d at 996, 59 CCPA at 95; Imbert Imports, supra, 475 F.2d at 1192, 60 CCPA at 127; Pasco Terminals, Inc., supra, 477 F.Supp. 201, 83 Cust.Ct. at-. Consolo v. Federal Maritime Commission et al., 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966), is a leading case defining “substantial evidence”. There, the Supreme Court observed (at 619-20, 86 S.Ct. at 1026): * * * We have defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126. “[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Labor Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 961, 86 L.Ed. 1305; Keele Hair & Scalp Specialists, Inc. v. FTC, 5 Cir., 275 F.2d 18, 21. [Emphasis added; footnote omitted.] See also Richardson, Secretary of Health, Education, and Welfare v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Applying the above-quoted definition to the record herein, I find that there is substantial evidence supporting the Commission’s negative determination. The" }, { "docid": "21870796", "title": "", "text": "of injury is equally well founded. On that score, the Commission pointed to the continuing trend of increased domestic shipments, and it further noted that prices for the Japanese tools in question were rising at rates “more steeply than those of the domestic” (39 F.R. 38133). Ill Plaintiffs maintain that the Commission should have found from the record transmitted to the court that the LTFV pricing afforded a competitive advantage to the subject Japanese tools resulting in significant levels of market penetration of the imports accompanied by serious market disruption in the form of lost sales, preclusion from major domestic markets, restraints on investment in productive capacity, price suppression, decreased profit margins, and slowdowns in domestic shipments and production. Further, plaintiffs argue that the Commission’s findings in support of its negative determination have no rational basis in fact, are arbitrary, capricious and not supported by substantial evidence. Plaintiffs are particularly critical of the Commission’s findings concerning the character of the U.S. market for the tools in question and the respective natures of the domestically produced tools and the imports sold at LTFV. These findings are relevant to the competitiveness of the LTFV imports with the domestically produced handtools. On this aspect, plaintiffs urge that had the Commission found that the LTFV imports competed directly with the domestic handtools, it would have been obligated to find injury as a matter of law. I agree with the party-in-interest’s contention that plaintiffs’ arguments relating to the administrative record are directed, essentially, at discretionary findings by the Commission. As conceded by plaintiffs, it is not the function of the court in reviewing an injury determination of the Commission under the Antidumping Act to weigh the evidence or substitute its judgment for that of the Commission. City Lumber Co., supra, 59 CCPA at 92; Imbert Imports, supra, 60 CCPA at 126. Moreover, since the Commission based its determination on a consideration of appropriate indicia of injury, absent any clear error of judgment (and I find none), the Commission’s determination cannot be regarded as arbitrary and capricious. Bowman Transportation, Inc., supra, 419 U.S. at 285-86; Citizens" }, { "docid": "14203411", "title": "", "text": "at 146, 59 S.Ct. 754, at 765, 83 L.Ed. 1147 (1939). The basis of petitioner’s argument is, however, almost exclusively factual in nature, since the thrust of this appeal is that the Commission must be reversed because it patently misconstrued the facts. In asking this Court to reverse the Commission’s decision petitioner urges that this agency’s action was arbitrary and capricious. The burden petitioner has assumed in this case is by no means a light one. Petitioner has not met this burden and he has failed to show that the Compensation Board’s construction of the facts was either arbitrary and capricious or that it was not supported by substantial evidence. That the facts in a case are possibly susceptible to two different interpretations does not render the agency decision unsupported by substantial evidence. A purview of the entire record in this case reveals that the decision is indeed grounded in logic and reason, supported by generally accepted scientific principles, and buttressed by a careful analysis of all the facts and factors involved. In a case such as this where both petitioner’s and respondent’s briefs are devoted almost exclusively to arguments concerning varying constructions of the facts, considerable deference must be given to the expertise of the administrative agency in this field. The mandate from Congress is clear that within a specified and carefully delineated area, id est, the determination and examination of the technical factors upon which an applicant is or is not entitled to compensation, the Patent Compensation Board and the Atomic Energy Commission are to utilize and employ the skill and knowledge which they possess in this area. See 42 Ü.S.C. § 2187(c) (1), (2) (1964). The petitioner was afforded a full evidentiary hearing at which witnesses for both sides were permitted to testify. All witnesses were, of course, subjected to the “crucible of cross-examination.” We find therefore that the decision of the Patent Compensation Board as affirmed by the Atomic Energy Commission is not arbitrary and capricious; that it is supported by substantial evidence in the record below; and that its evaluation and interpretation of all the" }, { "docid": "5107204", "title": "", "text": "Commission’s decision. In short, plaintiffs insist that had the Commission concluded that the LTFV imports competed directly with the domestic hand tools, it would have been obligated to find, as a matter of law, that an industry in the United States was being or was likely to be injured. It is evident that plaintiffs’ arguments essentially challenge discretionary findings by the Commission. Fundamentally, it is not the function of the Court in reviewing an injury determination of the Commission under the Antidumping Act to weigh the evidence or substitute its judgment for that of the Commission. City Lumber Co. et al. v. United States, 59 CCPA 89, C.A.D. 1045, 457 F.2d 991 (1972); Imbert Imports, Inc., et al. v. United States, 60 CCPA 123, C.A.D. 1094, 475 F.2d 1189 (1973). Moreover, since the Commission based its determination on a consideration of appropriate indicia of injury, absent any clear error of judgment (and I find none), the Commission’s determination cannot be regarded as arbitrary or capricious. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., et al, 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974), reh. denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1975); Citizens to Preserve Overton Park, Inc., et al. v. Volpe, Secretary of Transportation, et al., 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Addressing the question of the scope and extent of judicial power to set aside the ruling of an administrative agency, the Court of Appeals made this relevant observation in Deutsch v. United States Atomic Energy Commission, 401 F.2d 404, 407 (C.A.D.C.1968): We are urged to overrule the [Atomic Energy] Commission’s holding that petitioner is not entitled to an award upon the ground that this conclusion is arbitrary and capricious and lacks substantial evidence in the record supporting or justifying this ruling. We were told, moreover, on oral argument that the factual basis for the Commission’s holding is clearly and completely erroneous as a matter of scientific knowledge and phenomenon. The briefs and supporting documents filed by both parties are extensively devoted to presentation and" }, { "docid": "5466975", "title": "", "text": "246, 9 L.Ed.2d 207] (1962). In reviewing that explanation, we must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., [419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974) ]; Citizens to Preserve Overton Park v. Volpe, [401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971) ]. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given. SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947). We will, however, “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra, at 286. [95 S.Ct. at 442.] See also Camp v. Pitts, 411 U.S. 138, 142-143 [93 S.Ct. 1241, 1244, 36 L.Ed.2d 106] (1973) (per curiam). Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983). IBEW argues that the ICC’s decision to review arbitration awards is arbitrary and capricious because it is inconsistent with ICC precedent and is unreasonable on policy grounds. We reject the petitioner’s arguments on both counts. First, as we concluded above, the ICC’s decision to review arbitration awards was not inconsistent with its earlier precedent. The issue of its reviewing powers has never before been raised, and the Commission’s resolution of that issue in this case does not conflict with its earlier rulings." }, { "docid": "686302", "title": "", "text": "this relevant observation: We are urged to overrule the [Atomic Energy] Commission’s holding that petitioner is not entitled to an award upon the ground that this conclusion is arbitrary and capricious and lacks substantial evidence in the record supporting or justifying this ruling. We were told, moreover, on oral argument that the factual basis for the Commission’s holding is clearly and completely erroneous as a matter of scientific knowledge and phenomenon. The briefs and supporting documents filed by both parties are extensively devoted to presentation and argument as to the correctness, or the falsity of scientific principles related to radioactive material and products, atomic energy, irradiation, the nucleus of the atom and the action and reaction of its protons and neutrons. We are therefore confronted at the very threshold of this case with the ever-recurring question of the scope and extent of our authority to set aside the ruling of an administrative agency. Despite our daily diet of challenges to administrative agency action and our resulting repeated efforts to articulate the limits of judicial review of such actions we nevertheless are continually called upon to substitute our judgment on factual issues for that of the agency charged by Congress with the initial responsibility of making, evaluating, and acting upon those facts. It is well settled that the fact-finding function is within the exclusive province of the administrative agency. We appear unable to establish a substantial recognition at the Bar that “[t]he judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.” Rochester Telephone Corp. v. United States, 307 U.S. 125, at 146, 59 S.Ct. 754, at 765, 83 L.Ed. 1147 (1939). [Emphasis added; footnote omitted.] In light of the above-cited decisions, it would be impermissible for me to substitute my judgment for that of the Commission or to reweigh the evidence as to specific factual findings. After a careful and searching review of the administrative record, I hold: that the factual findings of the Commission have a rational basis in fact; that the Commission applied the proper legal standards;" }, { "docid": "21870797", "title": "", "text": "tools and the imports sold at LTFV. These findings are relevant to the competitiveness of the LTFV imports with the domestically produced handtools. On this aspect, plaintiffs urge that had the Commission found that the LTFV imports competed directly with the domestic handtools, it would have been obligated to find injury as a matter of law. I agree with the party-in-interest’s contention that plaintiffs’ arguments relating to the administrative record are directed, essentially, at discretionary findings by the Commission. As conceded by plaintiffs, it is not the function of the court in reviewing an injury determination of the Commission under the Antidumping Act to weigh the evidence or substitute its judgment for that of the Commission. City Lumber Co., supra, 59 CCPA at 92; Imbert Imports, supra, 60 CCPA at 126. Moreover, since the Commission based its determination on a consideration of appropriate indicia of injury, absent any clear error of judgment (and I find none), the Commission’s determination cannot be regarded as arbitrary and capricious. Bowman Transportation, Inc., supra, 419 U.S. at 285-86; Citizens to Preserve Overton Park, Inc., supra, 401 U.S. at 416. With reference to the limitation on the court’s power to review the evidence before the Commission, the party-in-interest has called attention to Deutsch v. United States Atomic Energy Commission, 401 F. 2d 404, 407 (C.A.D.C. 1968), wherein the court of appeals made this relevant observation: We are urged to overrule the (Atomic Energy) Commission’s holding that petitioner is not entitled to an award upon the ground that this conclusion is arbitrary and capricious and lacks substantial evidence in the record supporting or justifying this ruling. We were told, moreover, on oral argument that the factual basis for the Commission’s holding is clearly and completely erroneous as a matter of scientific knowledge and phenomenon. The briefs and supporting documents filed by both parties are extensively devoted to presentation and argument as to the correctness, or the falsity of scientific principles related to radioactive material and products, atomic energy, irradiation, the nucleus of the atom and the action and reaction of its protons and neutrons. We are" }, { "docid": "15758116", "title": "", "text": "can recover the difference between single-car and multiple-car rates, but not demurrage charges. Moreover, the railroads’ contention that demurrage is not involved in this case also flows from a misunderstanding of Ormet. It was because the consignors could not have accumulated sufficient cars for Erco without incurring demurrage, and because under Ormet Erco could recover the difference between the single-car and multiple-car rate, that Erco agreed to ship at the single-car rate. Under the arbitrary and capricious scope of review we must consider “whether the [Commission’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). The Commission “must articulate a ‘rational connection between the facts found and the choice made.’ ” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974), quoting Burlington Truck Lines v. United States, 371 U.S. 156, 158, 83 S.Ct. 239, 240, 9 L.Ed.2d 207 (1962). The Commission’s determination that this case is a proper case for the application of the principle of Ormet is not arbitrary. Finally, the railroads contend that the district court erred in failing to address in its order granting Erco’s second motion for summary judgment the propriety of the Commission’s application of Ormet and also in failing to propound reasons for its enforcement of the Commission order. The district court’s order granting summary judgment and enforcing the Commission’s order stated that “no issue of material fact remains preventing entry of summary judgment and the decision of the Commission, as subsequently clarified, is based upon adequate findings and is supported by substantial evidence.” Although findings of fact and conclusions of law need not be included in orders granting summary judgment under Fed.R.Civ.P. 52(a), the parties are entitled to know the reasons upon which the summary judgment was based in order to facilitate appellate review. Hanson v. Aet-na Life & Casualty, 625 F.2d 573, 575 (5th Cir. 1980). In this case the district" }, { "docid": "5107206", "title": "", "text": "argument as to the correctness, or the falsity of scientific principles related to radioactive material and products, atomic energy, irradiation, the nucleus of the atom and the action and reaction of its protons and neutrons. We are therefore confronted at the very threshold of this case with the ever-recurring question of the scope and extent of our authority to set aside the ruling of an administrative agency. Despite our daily diet of challenges to administrative agency action and our resulting repeated efforts to articulate the limits of judicial review of such actions we nevertheless are continually called upon to substitute our judgment on factual issues for that of the agency charged by Congress with the initial responsibility of making, evaluating, and acting upon those facts. It is well settled that the fact-finding function is within the exclusive province of the administrative agency. We appear unable to establish a substantial recognition at the Bar that “[t]he judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.” Rochester Telephone Corp. v. United States, 307 U.S. 125, at 146, 59 S.Ct. 754, at 765, 83 L.Ed. 1147 (1939). [Emphasis added; footnote omitted.] See also the recent opinion of Judge Maletz in Pasco Terminals Inc. v. United States, 83 Cust.Ct. -, C.D. 4823, 477 F.Supp. 201 (1979), appeal pending, wherein the Court addressed the discretionary authority of the Commission in injury determinations under the Antidumping Act and the applicable standard of judicial review. In light of the above-cited authorities, it would be impermissible for me to substitute my judgment for that of the Commission or to re-weigh the evidence as to specific fac tual findings. After a careful and searching review of the administrative record, I hold that the findings of the Commission discussed above have a rational basis in fact and are supported by substantial evidence. That plaintiffs might be able to draw conclusions from the record inconsistent with those reached by the Commission does not mean that the Commission’s determination is not supported by “substantial evidence”. As observed by the Supreme" }, { "docid": "21870798", "title": "", "text": "to Preserve Overton Park, Inc., supra, 401 U.S. at 416. With reference to the limitation on the court’s power to review the evidence before the Commission, the party-in-interest has called attention to Deutsch v. United States Atomic Energy Commission, 401 F. 2d 404, 407 (C.A.D.C. 1968), wherein the court of appeals made this relevant observation: We are urged to overrule the (Atomic Energy) Commission’s holding that petitioner is not entitled to an award upon the ground that this conclusion is arbitrary and capricious and lacks substantial evidence in the record supporting or justifying this ruling. We were told, moreover, on oral argument that the factual basis for the Commission’s holding is clearly and completely erroneous as a matter of scientific knowledge and phenomenon. The briefs and supporting documents filed by both parties are extensively devoted to presentation and argument as to the correctness, or the falsity of scientific principles related to radioactive material and products, atomic energy, irradiation, the nucleus of the atom and the action and reaction of its protons and neutrons. We are therefore confronted at the very threshold of this case with the ever-recurring question of the scope and extent of our authority to set aside the ruling of an admmistrative agency. Despite our daily diet of challenges to administrative agency action and our resulting repeated efforts to articulate the limits of judicial review of such actions we nevertheless are continually called upon to substitute our judgment on factual issues foe that of the agency charged by Congress with the initial responsibility of making, evaluating, and acting upon those facts. It is well settled that the jaetjinding junction is within the exclusive province oj the administrative agency. We appear unable to establish a substantial recognition at the Bar that “[t]he judicial junction is exhausted when there is jound to be a rational basis jor the conclusions approved by the administrative body.” Rochester Telephone Corp. v. United States, 307 U.S. 125, at 146, 59 S. Ct. 754, at 765, 83 L. Ed. 1147 (1939). [Italic added; footnote omitted.| In light of the above-cited decisions, it would be impermissible" }, { "docid": "21870800", "title": "", "text": "for me to substitute my judgment for that of the Commission or to reweigh the evidence as to specific factual findings. After a careful and searching review of the administrative record, I hold: That the factual findings of the Commission have a rational basis in fact; that the Commission applied the proper legal standards; and that the Commission considered appropriate economic and financial factors in making its negative determination. Accordingly, the Commission’s determination is not arbitrary or capricious, as claimed by plaintiffs. IV We now reach plaintiffs’ contention that the Commission’s injury-determination is not supported by substantial evidence. As we have seen, the substantial evidence standard of review has been adverted to by the courts in reviewing the Commission’s findings and determination under the Antidumping Act. See City Lumber, supra, 59 CCPA at 95; Imbert Imports, supra, 60 CCPA at 127; Pasco Terminals, Inc., supra, 83 Cust. Ct. at 65. Consolo v. Federal Maritime Commission et al., 383 U.S. 607 (1966) is a leading case defining “substantial evidence.” There, the Supreme Court observed (at 619-20): * * * We have defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229. “(I)t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Labor Board v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106; Keele Hair & Scalp Specialists, Inc. v. FTC, 275 P. 2d 18, 21. [Italic added; footnote omitted.] See also Richardson, Secretary of Health, Education, and Welfare v. Perales, 402 U.S. 389, 401 (1971). Applying the above-quoted definition to the record herein, I find that there is substantial evidence supporting" }, { "docid": "21900841", "title": "", "text": "as Commission Decision], reprinted in J.A. at 54, 56. Finally, the Commission believed that the grant of authority to Younger would increase competition and benefit the public. The Commission denied Truck’s request for rehearing. Truck now seeks review of the Commission’s decision. II. LEGAL ISSUES Our scope of review in this case is narrow. As we recently noted, we review ICC orders only “to determine whether the agency’s decision is supported by substantial evidence on factual matters and by a rational basis concerning questions of law and the application of law to fact.” Harborlite Corp. v. ICC, 613 F.2d 1088, 1093 (D.C.Cir.1979) (footnote omitted). Under our review for substantial evidence, we must uphold the Commission’s findings if they are grounded on “ ‘enough [evidence] to justify, if the trial were to a jury, a refusal to direct a verdict.’ ” Illinois Central Railroad v. Norfolk & Western Railway, 385 U.S. 57, 66, 87 S.Ct. 255, 260, 17 L.Ed.2d 162 (1966) (quoting NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939)). Our review for rationality is based on our statutory duty to overturn “arbitrary” or “capricious” agency decisionmak-ing. 5 U.S.C. § 706(2)(A) (1976). Under this standard, we “consider whether the decision was based on a consideration of the relevant factors and whether there has been' a clear error of judgment. . [T]he ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971) (quoted in Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974)). Given these controlling premises, we turn to Truck’s claims. In its petition, Truck charges the Commission with committing several procedural and substantive errors. It argues that the Commission unlawfully considered evidence of Younger’s performance under temporary authority in considering that carrier’s application for permanent authority. Truck further charges the Commission with an abuse of discretion" }, { "docid": "18700156", "title": "", "text": "Commission has acted within its delegated authority, has correctly interpreted (pertinent) statutory language, and has correctly applied the law.” City Lumber Co. v. United States, 59 CCPA 89, 92, C.A.D. 1045, 457 F. 2d 991, 994 (1972). As to the evidentiary record, the standard of this review has been stated to be whether the Commission’s determination is supported by substantial evidence. City Lumber Co., supra at 95, 457 F. 2d at 996. In Imbert Imports, Inc. v. United States, 60 CCPA 123, 127, C.A.D. 1094, 475 F. 2d 1189, 1192 (1973), the point was made- that even if the Administrative Procedure Act applied (not decided), the Commission’s determination was not arbi trary or an abuse of discretion. However, there appears to be no real difference between such standards. See Imbert Imports, Inc., id., where this court said: In short, we find that the findings of the Commission are supported by substantial evidence, and that the factors pointed out in the chairmans [sic] dissent are not of sufficient moment to establish that the decision of the majority was arbitrary. In view of the foregoing, we conclude that the issue before this court in this case is properly stated to be whether the Customs Court correctly held that the Commission’s determination is supported by substantial evidence in the record. This accords with the standard established by Congress in the Trade Agreement Act of 1979, which added a new section 516A to the Tariff Act of 1930, (Public Law 96-39, 93 Stat. 144, 302 (1979)). See also ASG Industries, Inc., supra. Our review of appellants’ arguments and portions of the record relating thereto persuades us that the Customs Court’s holding is correct. In affirming the judgment of the Customs Court, we adopt the court’s opinion as our own, with the single modification that we would state the sole standard of review of factual determinations of injury or likelihood of injury in antidumping cases to be whether the Commission’s determination is supported by substantial evidence. Affirmed. 19 U.S.C. 160(a) provides as follows: (a) Whenever the Secretary of the Treasury .(hereinafter called the Secretary) determines" } ]

[ { "docid": "22668043", "title": "", "text": "U. S. 254 (1964). There this Court defined a constitutional privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation. The Times ran a political advertisement endorsing civil rights demonstrations by black students in Alabama and impliedly condemning the performance of local law-enforcement officials. A police commissioner established in state court that certain misstatements in the advertisement referred to him and that they constituted libel per se under Alabama law. This showing left the Times with the single defense of truth, for under Alabama law neither good faith nor reasonable care would protect the newspaper from liability. This Court concluded that a “rule compelling the critic of official conduct to guarantee the truth of all his factual assertions” would deter protected speech, id., at 279, and announced the constitutional privilege designed to counter that effect: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280. Three years after New York Times, a majority of the Court agreed to extend the constitutional privilege to defamatory criticism of “public figures.” This extension was announced in Curtis Publishing Co. v. Butts and its companion, Associated Press v. Walker, 388 U. S. 130, 162 (1967). The first case involved the Saturday Evening Post’s charge that Coach Wally Butts of the University of Georgia had conspired with Coach “Bear” Bryant of the University of Alabama to fix a football game between their respective schools. Walker involved an erroneous' Associated Press account of former Major General Edwin Walker’s participation in a University of Mississippi campus riot. Because Butts was paid by a private alumni association and Walker had resigned from the Army, neither could be classified as a “public official” under New York Times. Although Mr. Justice Harlan announced the result in both cases, a majority of the" } ]

[ { "docid": "20320715", "title": "", "text": "claims against their critics based on a false statement of fact would “lead[ ] to ... ’self-censorship,’ ” deterring such critics “from voicing their criticism! ] even though it is believed to be true and even though it is in fact true.” IcL at 271-72, 279, 84 S.Ct. 710 (ellipsis omitted). In order to protect against such “self-censorship,” the Court adopted “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 84 S.Ct. 710. The Court has extended the New York Times “actual malice” rule to “public figures” even if they are not “public officials,” Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), but has “refus[ed] to extend the Neto York Times privilege to defamation of private individuals,” even with respect to matters of public concern, Gertz, 418 U.S. at 351, 94 S.Ct. 2997. Consistent with the principle set forth in New York Times, the Court held, in Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), that “the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.” Id. at 75, 85 S.Ct. 209 (emphasis added); see also id. (“Calculated false hood falls into that class of utterances which ‘are no essential part of any exposition of ideas (quoting Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766)). In Gertz, the Court confirmed that knowing lies are excluded from the limited First Amendment protection Neiu York Times established for false statements of fact: “[T]he intentional lie ... [does not] materially advance! ] society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” Gertz, 418 U.S. at 340, 94 S.Ct. 2997 (quoting New York Times, 376 U.S. at 270, 84 S.Ct. 710). Although Garrison and Gertz both involved defamation, the Supreme Court and our court have extended" }, { "docid": "23370415", "title": "", "text": "of them were false. Nevertheless, the Court held that proof of more than factual inaccuracies was required to prevent speech protected by the First Amendment from being “chilled.” The Court held: The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Id. at 279-80, 84 S.Ct. 710. Three years later, the Court extended the protection of the actual malice standard from public officials to public figures in the companion cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In Gertz v. Welch, 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Court explained why the actual-malice standard is appropriate in defamation cases involving public officials or public figures as plaintiffs. The Court gave the reasons for the lower level of protection for these plaintiffs: Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater. Id. at 344, 94 S.Ct. 2997 (footnote omitted). A plaintiff becomes a general purpose public figure by attaining pervasive power and influence in society. Id. at 345, 94 S.Ct. 2997. Alternatively, he may become a limited-purpose public figure with regard to that controversy by thrusting himself into a particular public controversy “to influence the resolution of the issues involved.” Id. “Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare.” Id. We are powerless to decide whether this is one of those “exceedingly rare” cases in which plaintiff P&G involuntarily has become" }, { "docid": "13782639", "title": "", "text": "725 (1975). The action by the Caucus in denying Senator Ammond the opportunity to attend its deliberations deprived her constituents of the Equal Protection of the law. In effect, the action by the Caucus created two classes of voters. One class consists of those citizens whose Senators could effectively participate fully in the legislative process and another class whose Senator could participate only to a limited degree. As the Supreme Court has indicated: “. . . [T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964). While it is true that Senator Ammond was not barred from voting on the floor of the New Jersey Senate, her exclusion from the Caucus could vastly diminish her efficacy as an elected representative. This court need not consider the merits of the controversy between Senator Ammond and her colleagues and while we are not confronted with the question of whether her public statements are defamatory, we note that the alleged “[i]njury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error.” New York Times Co. v. Sullivan, 376 U.S. 254, 272, 84 S.Ct. 710, 722, 11 L.Ed.2d 686 (1964). We also note, in passing, that if these defendants were to seek redress in the courts for the alleged injury to their reputations caused by Senator Ammond’s remarks, they would be met by “[t]he constitutional guarantees . that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 84 S. Ct. at 726; see Gertz v. Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). While we intimate no view as to the defamatory nature of Senator" }, { "docid": "22688089", "title": "", "text": "facts, represented the actual opinion of the speaker, and was not made solely for the purpose of causing harm. See Restatement of Torts, supra, §606. “According to the majority rule, the privilege of fair comment applied only to an expression of opinion and not to a false statement of fact, whether it was expressly stated or implied from an expression of opinion.” Restatement (Second) of Torts, supra, § 566, Comment a. Thus under the common law, the privilege of “fair comment” was the device employed to strike the appropriate balance between the need for vigorous public discourse and the need to redress injury to citizens wrought by invidious or irresponsible speech. In 1964, we decided in New York Times Co. v. Sullivan, 376 U. S. 254, that the First Amendment to the United States Constitution placed limits on the application of the state law of defamation. There the Court recognized the need for “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280. This rule was prompted by a concern that, with respect to the criticism of public officials in their conduct of governmental affairs, a state-law “ ‘rule compelling the critic of official conduct to guarantee the truth of all his factual assertions’ would deter protected speech.” Gertz v. Robert Welch, Inc., supra, at 334 (quoting New York Times, supra, at 279). Three years later, in Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), a majority of the Court determined “that the New York Times test should apply to criticism of ‘public figures’ as well as ‘public officials.’ The Court extended the constitutional privilege announced in that case to protect defamatory criticism of nonpublic persons ‘who are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.’”" }, { "docid": "22958634", "title": "", "text": "grounds that neither defendant had knowledge of falsity, that neither entertained serious doubts as to the truth of any statement in the article, and that neither acted with reckless disregard for truth or falsity. 330 F.Supp. 936, 940 (1970). This appeal followed. I In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L. Ed.2d 686 (1964), it was established that the First and Fourteenth Amendments’ protection of speech and the press restrict the enforcement of State libel laws. Times accordingly held that a public official may recover damages “for a defamatory falsehood relating to his official conduct” only if he “proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280, 84 S.Ct. at 726. The holding of Times was reaffirmed and the reckless disregard aspect of its actual malice standard amplified in St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L.Ed.2d 262 (1968). The Court said with respect to this aspect of the constitutional standard: “[Rjeekless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” 390 U. S., at 731, 88 S.Ct., at 1325. It is clear, finally, that the conditional privilege granted by Times to false defamatory expression no longer is confined to statements concerning public officials. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), holds that constitutional protection is to be extended to “all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.” Id., at 44, 91 S.Ct., at 1820. Thus, “the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue" }, { "docid": "20320714", "title": "", "text": "the First Amendment. There is, however, an important exception to this principle: where protecting a false statement is necessary “in order to protect speech that matters.” Gertz, 418 U.S. at 341, 94 S.Ct. 2997; see also BE & K, 536 U.S. at 531, 122 S.Ct. 2390 (“[W]hile false statements may be unprotected for their own sake, ‘[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters.’ ” (emphasis omitted) (second alteration in original) (quoting Gertz, 418 U.S. at 341, 94 S.Ct. 2997)). In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the seminal case in this area, the Court extended limited First Amendment protection to libelous statements “critical of the official conduct of public officials.” Id. at 268, 84 S.Ct. 710. Because “erroneous statement is inevitable in free debate, and ... must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive,’ ” the Court feared that permitting public officials to bring tort claims against their critics based on a false statement of fact would “lead[ ] to ... ’self-censorship,’ ” deterring such critics “from voicing their criticism! ] even though it is believed to be true and even though it is in fact true.” IcL at 271-72, 279, 84 S.Ct. 710 (ellipsis omitted). In order to protect against such “self-censorship,” the Court adopted “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 84 S.Ct. 710. The Court has extended the New York Times “actual malice” rule to “public figures” even if they are not “public officials,” Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), but has “refus[ed] to extend the Neto York Times privilege to defamation of private individuals,” even with respect to matters of public" }, { "docid": "7246264", "title": "", "text": "is infected with substantial and material falsification, and if it is published with knowledge of such falsification or with reckless disregard for the truth, then it is a use for purposes of trade and the public figure can recover. Spahn v. Julian Messner, Inc., 21 N.Y.2d 124, 233 N.E.2d 840, 286 N.Y.S.2d 832 (1967), appeal dismissed 393 U.S. 1046, 89 S.Ct. 676, 21 L.Ed.2d 600 (1969). This exception has been further refined in the case of Hicks v. Casablanca Records, 464 F.Supp. 426 (S.D.N.Y.1978) in which the court held that in addition to containing substantial and material falsification, the use of the public figure’s name or likeness must take such a form that the reader would reasonably believe the falsification. Thus, in Spahn where the use took the form of biography, there was a use for purposes of trade, but in Hicks where the use took the form of a novel, there was no use for purposes of trade. Because the jury found that the parody in the instant case was not reasonably believable and because it contained a disclaimer, publication of the parody did not constitute a use of Falwell’s name and likeness for purposes of trade. The district court properly dismissed this claim. For these reasons, the decision of the district court is affirmed. AFFIRMED. . Defendants argue that the more vile and outrageous the statement about a public figure, the greater the protection to the publisher because the public is not apt to believe such a statement. . \"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-80, 84 S.Ct. at 726. . Actual malice under New York Times is different from common law malice, which is the intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury" }, { "docid": "23370414", "title": "", "text": "v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). There, a group of black clergymen ran an advertisement in the Times in the form of an editorial; they spoke of the civil rights demonstrations by black students then occurring in the South and of the intimidation and violence practiced against the protestors and against Dr. Martin Luther King, Jr. The advertisement complained of the police responses to the demonstrators and asked for financial donations in support of the student movement, the struggle for the right to vote, and the legal defense of Dr. King. L.B. Sullivan, the Montgomery commissioner in charge of police, sued the clergymen and the Times for civil libel, arguing that the actions ascribed to the “police” were necessarily imputed to his leadership and that some of the accusations were false. Sullivan further argued that the Times could have discovered that the allegations were false by checking its files of previously published articles. The Court agreed that references to the police could be imputed to Sullivan and that some of them were false. Nevertheless, the Court held that proof of more than factual inaccuracies was required to prevent speech protected by the First Amendment from being “chilled.” The Court held: The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Id. at 279-80, 84 S.Ct. 710. Three years later, the Court extended the protection of the actual malice standard from public officials to public figures in the companion cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In Gertz v. Welch, 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Court explained why the actual-malice standard is appropriate in defamation cases involving public officials or public figures as plaintiffs. The Court" }, { "docid": "11815243", "title": "", "text": "official conduct of a public official. The Court said that these constitutional guarantees prohibit recovery of damages “unless he [the public official] proves that the statement was made with ‘actual malice’— that is with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-280, 84 S.Ct. at 726. The Court required proof of “actual malice” presented with “convincing clarity” or proof of “the recklessness that is required for a finding of actual malice.” 376 U.S. at 285-286, 288, 84 S.Ct. at 730. The protection originally granted the publications relating to “public officials” were later extended to cover “pub- lie figures.” Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). The Rosenbloom, plurality-articulated both the legal precept and the procedural standards utilized by the district court in the case before us: “. . .a libel action . . . by a private individual . . . for a defamatory falsehood in a . . . [publication] relating to his involvement in an event of public of general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not.” 403 U.S. at 52, 91 S.Ct. at 1824. [Footnote omitted.] “[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” 403 U. S. at 56, 91 S.Ct. at 1826. III. We experience some discomfort in accepting the Rosenbloom plurality opinion as a definitive statement of the appropriate law for this proceeding. Although the district court seemed quick to accept the opinion of three Supreme Court Justices as ruling case law, we are constrained to observe that the affirmance of this court’s judgment in that case was produced by a majority coalition of Supreme Court Justices for" }, { "docid": "2305385", "title": "", "text": "the jury, in order to ensure that no \"forbidden intrusion on the field of free expression\" has occurred. Id. at 285, 84 S.Ct. at 729 (internal quotation and citation omitted). To remove the chilling effect of defamation laws and to encourage \"uninhibited, robust, and wide-open\" debate, the Supreme Court created a constitutional rule protecting the good faith criticism of government officials in New York Times, 376 U.S. at 270-71, 84 S.Ct. at 720-21. Because freedoms of expression require \"breathing space,\" id. at 272, 84 S.Ct. at 721-22, the Court held that the Constitution \"prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice.'\" Id. at 279-SO, 84 S.Ct. at 725. Actual malice is a statement made \"with knowledge that it was false or with reckless disregard of whether it was false.\" Id. at 280, 84 S.Ct. at 726. To ensure no forbidden intrusion on these First Amendment liberties, an appellate court's review of a trial court's finding of actual malice is not controlled by the \"clearly erroneous\" standard of Federal Rule of Civil Procedure 52(a). Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 498-511, 104 S.Ct. 1949, 1958-65, 80 L.Ed.2d 502 (1984). \"Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of `actual malice.'\" 1d at 511, 104 S.Ct. at 1965. The Supreme Court examined the protection for media defendants in suits brought by private individuals in Gertz, 418 U.S. 323, 94 S.Ct. 2997. The Court determined that the New York Times' actual malice standard was inappropriate in suits brought by private persons attempting to prove injury to their reputation on a matter of public interest. Id. at 344-47, 94 S.Ct. at 3009-11. The Court nevertheless imposed two other constitutional limitations. First, the Court held that the states could not impose liabffity without fault. Id. at 346-47, 94 S.Ct. at" }, { "docid": "22384061", "title": "", "text": "statements and that the statements concerned the plaintiff. Ibid. The trial court also instructed the jury that an award of punitive damages required “malice” or “actual malice.” Id., at 262, 267. The jury found for the plaintiff and made an award of damages that did not distinguish between compensatory and punitive damages. Id., at 262. The Alabama Supreme Court upheld the judgment of the trial court in all respects. Id., at 263. This Court reversed, holding that “libel can claim no talis-manic immunity from constitutional limitations.” Id., at 269. Against the “background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks,” the Court noted that “[ajuthoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth— whether administered by judges, juries, or administrative officials — and especially one that puts the burden of proving truth on the speaker.” Id., at 270-271. Freedoms of expression require “‘breathing space,’” id., at 272 (quoting NAACP v. Button, 371 U. S. 415, 433 (1963)): “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount— leads to . . . ‘self-censorship.’ . . . Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” 376 U. S., at 279. The Court therefore held that the Constitution “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280. That showing must be made" }, { "docid": "22397819", "title": "", "text": "Plaintiff, the Defendant has acted maliciously and the privilege is destroyed. Further, if the Report was made with reckless disregard of the possible consequences, or if it was made with the knowledge that it was false or with reckless disregard of its truth or falsity, it was made with malice.” App. 18-19 (emphasis added). Ill In New York Times Co. v. Sullivan, supra, the Court for the first time held that the First Amendment limits the reach of state defamation laws. That case concerned a public official’s recovery of damages for the publication of an advertisement criticizing police conduct in a civil rights demonstration. As the Court noted, the advertisement concerned “one of the major public issues of our time.” Id., at 271. Noting that “freedom of expression upon public questions is secured by the First Amendment,” id., at 269 (emphasis added), and that “debate on public issues should be uninhibited, robust, and wide-open,” id., at 270 (emphasis added), the Court held that a public official cannot recover damages for defamatory falsehood unless he proves that the false statement was made with “‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not,” id., at 280. In later cases, all involving public issues, the Court extended this same constitutional protection to libels of public figures, e. g., Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), and in one case suggested in a plurality opinion that this constitutional rule should extend to libels of any individual so long as the defamatory statements involved a “matter of public or general interest,” Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 44 (1971) (opinion of Brennan, J.). In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), we held that the protections of New York Times did not extend as far as Rosenbloom suggested. Gertz concerned a libelous article appearing in a magazine called American Opinion, the monthly outlet of the John Birch Society. The article in question discussed whether the prosecution of a policeman in Chicago was part of" }, { "docid": "877143", "title": "", "text": "848 (S.D.N.Y.1970); Cerrito v. Time, Inc., 302 F.Supp. 1071 (N.D.Cal.1969), aff’d., 449 F.2d 306 (9th Cir. 1970). Accordingly, the constitutional privilege mandates the granting of a motion for summary judgment as soon as it becomes clear that a plaintiff cannot establish the “actual malice” required for recovery in defamation actions of this nature. An analysis of a libel claim must commence with the seminal case of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In New York Times, the Supreme Court superimposed constitutional limitations on state libel laws and held that the freedoms of speech and of the press guaranteed by the First and Fourteenth Amendments prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct, unless he proves that the statement was made with “actual malice”, which the court defined as the publication of false statements with actual knowledge of their falsity or with reckless disregard for their truth or falsity. 376 U.S. at 279-280, 84 S.Ct. 710. See, also Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Miller v. News Syndicate Co., 445 F.2d 356 (2d Cir. 1971). A logical extension of the New York Times rule followed three years later in Curtis Publishing Co. v. Butts, and its companion, Associated Press v. Walker, 388 U.S. 130, 162, 87 S.Ct. 1975, 18 L. Ed.2d 1094 (1967). The Court therein concluded that the New York Times test should.apply to criticism of “public figures” as well as “public officials”. In Curtis and Walker, the Court extended the constitutional privilege to protect defamatory criticism of non-public officials who “are nevertheless intimately involved in the resolution of important public questions, or, by reason of their fame, shape events. in areas of concern to society at large.” Id., at 164, 87 S.Ct. at 1996. In 1971, a plurality of the Court extended the constitutional privilege once again to protect defamatory criticism against private individuals, Rosenbloom v. Metromedia, 403 U.S. 29; 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). Although no more than three Justices joined" }, { "docid": "15104977", "title": "", "text": "in refusing to continue the hearing on the summary judgment motion until Ude-vitz had been deposed. I. Status as a Public Official The First Amendment is premised on the belief that free and open debate on public issues must be protected from government interference. The Amendment “was fashioned to assure unfettered interchange of ideas for the bringing of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957). If these ends are to be achieved, protection of expression cannot be limited to what is true. “[EJrroneous statement is inevitable in free debate[;] ... it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive.’ ” New York Times, 376 U.S. at 271-72, 84 S.Ct. at 721-22 (quoting N.A.A. C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1962)). Consequently, the Supreme Court has placed limits on the award of damages in defamation actions. One such limitation is the rule established in New York Times, 376 U.S. at 279, 84 S.Ct. at 726, that “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” In fleshing out the New York Times standard, the Court has indicated that a showing of actual malice requires the public official to provide “clear and convincing proof,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789, “that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). Two prerequisites must be met for the New York Times standard to apply. The plaintiff must be a public official for the purposes of the article and the defamatory statements must relate to his official conduct." }, { "docid": "7595400", "title": "", "text": "The pertinent part of section 1983 states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an ac tion at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (1982). . At different points in the trial, the judge referred to the school board members as public officials and public figures. The United States Constitution, however, does not make a distinction between the two, and neither party alleges error on this ground. See infra note 4. . In New York Times, the Supreme Court held that the constitutional guarantees of the first and fourteenth amendments require a \"federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice’— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-80, 87 S.Ct. at 726. . In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the Court extended the New York Times rule to public figures. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 342-43, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). . Justice Burger, at least implicitly, also rejected the media/nonmedia distinction, since he stated that he \"agree[s] generally with Justice White's observations concerning New York Times v. Sullivan.\" 105 S.Ct. at 2948 (Burger, C.J., concurring in judgment). McKAY, Circuit Judge, concurring in part and dissenting in part: I concur in the majority’s holding that the standard of proof in a defamation suit by a public official does not vary depending on whether the defendant is a member of the media. I also agree that the defendants’ eleventh amendment" }, { "docid": "22369755", "title": "", "text": "which would prevail if the jury found that the article was both true and published on a “lawful occasion.” The second defense was “con ditional privilege,” which could prevail even if the jury found the article to be false, but only if it also found that its publication was “on a lawful occasion, in good faith, for a justifiable purpose, and with a belief founded on reasonable grounds of the truth of the matter published.” The jury returned a verdict of $20,000, of which $10,000 was against the newspaper and $10,000 against NANA. On appeal, the New Hampshire Supreme Court affirmed the judgment, holding that the trial judge properly sent to the jury the question of whether or not the particular libel alleged was “relevant” to Roy’s fitness for office. 109 N. H. 441, 254 A. 2d 832. We granted certiorari in order to consider the constitutional issues presented by the case. 397 U. S. 904. I In New York Times Co. v. Sullivan, 376 U. S. 254, 279-280, we held that the First and Fourteenth Amendments require “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The rule of New York Times was based on a recognition that the First Amendment guarantee of a free press is inevitably in tension with state libel laws designed to secure society’s interest in the protection of individual reputation. The approach of New York Times was to identify a class of person- — ■ there public officials — and a type of activity — there official conduct — and to require as to defamations respecting them a particularly high standard of liability — knowing falsehood or reckless disregard of the truth. Later cases have made it clear that the applicability of this basic approach is not limited to those in public office or to the performance of official acts, or, for" }, { "docid": "13205853", "title": "", "text": "plaintiff. Falsity and damages were presumed, truth was a defense, and proof of fault was not required. See id. at 262-63, 267, 84 S.Ct. 710 (describing Alabama law); Restatement (Second) of Torts § 581A, cmt. b (1977); Restatement (Second) of Torts § 620, cmt. c (1977); 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 2:1.1 (4th ed. 2016). In New York Times, the Supreme Court limited defamation liability by developing “standards that satisfy the First Amendment.” 376 U.S. at 269, 84 S.Ct. 710. The Court declared that a “public official” seeking “damages for a defamatory falsehood” about his “official conduct” must prove with “convincing clarity” that the statement was made with “actual malice” — that is, “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 285, 84 S.Ct. 710. The “actual malice” standard — by requiring proof that the defendant published with knowledge or reckless disregard that the statement was false — also requires proof that the statement was false. See Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) (explaining New York Times requires a public official to prove “the utterance was false”); see also Air Wisc. Airlines Corp. v. Hoeper, —U.S.-, 134 S.Ct. 852, 861, 187 L.Ed.2d 744 (2014) (“[W]e have long held that actual malice requires material falsity”). In Gertz v. Robert Welch, Inc., the Court said both public officials and public figures must prove actual malice by “clear and convincing proof.” 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Gertz also held that a defamation plaintiff must prove actual injury to recover for a false and defamatory statement about a matter of public concern. Id. at 348-49, 94 S.Ct. 2997. And in Philadelphia Newspapers, Inc. v. Hepps, the Court held that in cases involving speech about matters of public concern, the First Amendment requires all plaintiffs — public and private — to prove falsity. 475 U.S. 767, 776, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). The plaintiff “carries the burden of" }, { "docid": "23010626", "title": "", "text": "Sullivan, supra, at 273. The right of a Civil Service employee to petition, except to the extent covered by 5 U.S.C. 652(d) with respect to petitions to Congress, does not extend outside the executive branch and the courts. It should remain in the power of the Heads of Departments to safeguard their employees against irresponsible false accusations by fellow employees, a matter of importance in the periods of hysteria and witch-hunting we are as a nation sometimes guilty of. A petition, properly so-called, that has never left a Department need do no harm. The responsibility, of course, falls on Congress when petitions to it have come into its hands. In either case the remedy is not suppression at the source. We turn to New York Times v. Sullivan, supra, for the guidelines we are to apply. The opinion written for the court by Mr. Justice Brennan declares, at pp. 279-80: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless be proves tbat the statement was made with ‘actual malice’— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Three justices, concurring specially, thought that this standard did not protect the press sufficiently from retribution for its attacks on public officials, and urged an absolute immunity. The court said at p. 271, “Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth — whether administered by judges, juries, or administrative officials — and especially one that puts the burden of proving\" truth on the speaker. Cf. Speiser v. Randall, 357 U.S. 513, 525-26.” A review of the proceedings herein shows that plaintiff lost his job on account of a “defamatory falsehood” (at worst) not shown to have been written with knowledge that it was false or with reckless disregard of whether it was false or not, and moreover, the burden of proving truth as to the crucial statement was thrown on him. Statements in" }, { "docid": "877142", "title": "", "text": "motion for summary judgment by asserting that there is an issue for the jury as to malice unless they make some showing, of the kind contemplated by the Rules, of facts from which malice may be inferred. Thompson v. Evening Star Newspaper Co., 129 U.S.App.D.C. 299, 394 F.2d 774 (1968). As I view the record, plaintiffs have failed to produce any evidence beyond the mere allegations that defendants published the book with reckless disregard of the falsity of its contents. Summary judgment is particularly appropriate at an early stage in' cases where claims of libel or invasion of privacy are made against publications dealing with matters of public interest and concern. In recognition of the constitutional privilege of free expression secured by the First and Fourteenth Amendments, the courts in libel actions have recognized the need for affording summary relief to defendants in order to avoid the “chilling effect” on freedom of speech and press. Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Konigsberg v. Time, Inc., 312 F.Supp. 848 (S.D.N.Y.1970); Cerrito v. Time, Inc., 302 F.Supp. 1071 (N.D.Cal.1969), aff’d., 449 F.2d 306 (9th Cir. 1970). Accordingly, the constitutional privilege mandates the granting of a motion for summary judgment as soon as it becomes clear that a plaintiff cannot establish the “actual malice” required for recovery in defamation actions of this nature. An analysis of a libel claim must commence with the seminal case of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In New York Times, the Supreme Court superimposed constitutional limitations on state libel laws and held that the freedoms of speech and of the press guaranteed by the First and Fourteenth Amendments prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct, unless he proves that the statement was made with “actual malice”, which the court defined as the publication of false statements with actual knowledge of their falsity or with reckless disregard for their truth or falsity. 376 U.S. at 279-280, 84 S.Ct. 710. See, also Garrison" }, { "docid": "693917", "title": "", "text": "the evidence referred to by Time in arguing this position, including the Commission’s findings, is available to Time to place before the jury for any appropriate purpose. Time’s need for more is questionable, with the exception of unpublished evidence that bears directly on General Sharon’s actions and state of mind immediately before the massacre. IV. Actual Malice Libel plaintiffs who are either public officials or public figures must prove both falsity and actual malice to recover. See, e.g., Bose Corp. v. Consumers Union Inc., — U.S. -, 104 S.Ct. 1949, 1960, 80 L.Ed.2d 502 (1984); Gertz v. Robert Welch, Inc., 418 U.S. 328, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974); Time, Inc. v. Pape, 401 U.S. 279, 284, 91 S.Ct. 633, 636, 28 L.Ed.2d 45 (1971); St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968); New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 285-86, 84 S.Ct. 710, 725-26, 728-29, 11 L.Ed.2d 686 (1964). The parties properly assume that Ariel Sharon, as a minister of a foreign government, is a “public official,” or, in any event, a “public figure.” Á defendant acts with actual malice when it publishes a statement either “with knowledge that it was false or with reckless disregard of whether it was false.” New York Times Co., 376 U.S. at 279-80, 84 S.Ct. at 725-26; Curtis Publishing Co. v. Butts, 388 U.S. 130, 154, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094 (1967). “The New York Times actual malice standard is deceptively simple: knowing falsity or reckless disregard of the truth or falsity of the defamatory statement.” Gertz v. Robert Welch, Inc., 680 F.2d 527, 537 (7th Cir.1982). This deceptive simplicity stems in large part from the fact-intensive nature of the actual malice inquiry. “ ‘Reckless disregard’ ... cannot be fully encompassed in one infallible definition. Inevitably, its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law.” St. Amant, 390 U.S. at 730-31, 88" } ]

[ { "docid": "5833494", "title": "", "text": "in December 2002, and allege that the $4,375,000 sale price was a market price for the business obtained after unsuccessful efforts to find an alternative buyer. Finally, Debtors note that the Objection of the Interface Creditors does not address the possibility of a ruling in favor of Pulver’s counterclaims, which would nullify any avoidance recovery, regardless of the strength of the avoidance claims. Pursuant to Bankruptcy Rule 9019(a), the authority to approve a compromise settlement is within the sound discretion of the bankruptcy court. See, e.g., In re Coram Healthcare Corp., 315 B.R. 321, 329 (Bankr.D.Del.2004); In re Trism, Inc., 282 B.R. 662, 666 (8th Cir. BAP 2002). In exercising this discretion, the bankruptcy court must determine whether the compromise is fair, reasonable, and in the best interest of the estate. In re Louise’s, Inc., 211 B.R. 798, 801 (D.Del.1997). Under Rule 9019(a), the bankruptcy court has a duty to make an informed, independent judgment that the compromise is fair and equitable. Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968); Myers v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir.1996). To be informed the bankruptcy court “must be apprised of all relevant information that will enable it to determine what course of action will be in the best interest of the estate.” In re Martin, 91 F.3d at 393. In its efforts to resolve the matter, “it is not necessary for a bankruptcy court to conclusively determine claims subject to a compromise, nor must the court have all of the information necessary to resolve the factual dispute, for by so doing, there would be no need of settlement.” In re Martin, 212 B.R. 316, 319 (8th Cir. BAP 1997). Nor is the court required to make a determination that the settlement is the best possible compromise. In re Coram, 315 B.R. at 330. In determining whether to approve a settlement, “[t]he court is not supposed to have a ‘mini-trial’ on the merits, but should ‘canvass the issues to see whether the settlement falls" } ]

[ { "docid": "23113821", "title": "", "text": "therefore conclude that the challenged items properly form a portion of the record for appeal. IV. Approval of the Settlement Rule 9019(a) of the Rules of Bankruptcy Procedure provides that “[o]n motion by the trustee and after hearing on notice to the creditors, ... the court may approve a compromise or settlement.” Approval of the settlement lies within the sound discretion of the Bankruptcy Court. Fogg v. Sherman Homes, Inc. (In re Sherman Homes, Inc.), 28 B.R. 176 (Bankr.D.Me.1983); Providers Benefit Life Insurance Co. v. Tidewater Group, Inc. (In re Tidewater Group, Inc.), 13 B.R. 764 (Bankr.N.D.Ga.1981). In deciding whether to approve a settlement, the court must determine whether the proposed settlement is in the best interest of the estate. Fogg, supra; Tidewater Group, supra. See, In re Hallet, 33 B.R. 564, 566 (Bankr.D.Me.1983) (trustee has burden of showing that the compromise is in the best interest of the estate). In exercising its discretion regarding whether to approve a trustee’s application to settle a controversy, relevant criteria which the Bankruptcy Court may consider include: (1) the probability of success in the litigation; (2) the likely difficulties in collection; (3) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it; and (4) the paramount interests of the creditors. In re Patel, 43 B.R. 500, 504-05 (N.D.Ill.1984); In re Carla Leather, 44 B.R. 457, 466 (Bankr.S.D.N.Y.1984); Tidewater Group, supra, 13 B.R. at 765, W.T. Grant, 4 B.R. 53, 69 (Bankr.S.D.N.Y.1984). In determining whether to approve the trustee’s application to settle a controversy, the Bankruptcy Court does not substitute its judgment for that of the trustee. Carla Leather, supra, 44 B.R. at 465. “Nor is the court ‘to decide the numerous questions of law and fact raised by [objections] but rather to canvass the issues to see whether the settlement fall[s] below the lowest point in the range of reasonableness.’ ” Id., quoting, In re W.T. Grant Co., 669 F.2d 599,608 (2d Cir.1983). In addition, “[b]ecause the bankruptcy judge is uniquely situated to consider the equities and reasonableness of a particular compromise, approval or denial of a compromise" }, { "docid": "17547598", "title": "", "text": "against the value to the estate of the acceptance of the compromise proposal.” Myers v. Martin (In re Martin ), 91 F.3d 389, 393 (3d Cir.1996). In striking this balance, the court should consider: (1) the probability of success in litigation; (2) the likely difficulties in collection; (3) the complexity of the litigation involved, and the expense, inconvenience, and delay necessarily attending it; and (4) the paramount interest of creditors. Id., (citing TMT Trailer, 390 U.S. at 424-25, 88 S.Ct. at 1163-64). See also Nutraquest, 434 F.3d at 644-45 (reaffirming use of the Martin factors for approving settlement of claims by and against an estate); In re Washington Mutual, Inc., 442 B.R. 314, 328 (Bankr.D.Del.2011); In re Spansion, Inc., 2009 WL 1531788, *4 (Bankr.D.Del. June 2, 2009). In evaluating the fairness of a settlement, the court does not have to be convinced that the settlement is the best possible compromise, but only that the settlement falls within a reasonable range of litigation possibilities. Washington Mutual, 442 B.R. at 328 (citing Coram Healthcare, 315 B.R. at 330). Therefore, the settlement need only be above the “lowest point in the range of reasonableness.” Washington Mut., 442 B.R. at 328. The DCL Plan Proponents bear the burden of persuading the Court that the Settlements falls within the range of reasonableness. Id. (citing In re Key3Media Group, Inc., 336 B.R. 87, 93 (Bankr.D.Del.2005)). (1) Probability of Success in Litigation In evaluating this factor, the Court’s task is not to “decide the numerous questions of law and fact raised by the [objections] but rather to canvass the issues to see whether the settlement fall[s] below the lowest point in the range of reasonableness.” Exide, 303 B.R. at 68 (quoting In re Neshaminy Office Bldg. Assoc., 62 B.R. 798, 803 (E.D.Pa.1986)); see also In re Cellular Information Systems, Inc., 171 B.R. 926, 950 (Bankr.S.D.N.Y.1994) (The purpose in addressing the first Martin factor is “not to make findings of fact and conclusions of law, but to canvass the issues to assess the risks associated with prosecuting the [litigation].”) The LBO-Related Causes of Action that are being settled" }, { "docid": "5833496", "title": "", "text": "below the lowest point in the range of reasonableness.’ ” E.g., In re Jasmine, Ltd., 258 B.R. 119, 123 (D.N.J.2000) (citing In re Neshaminy Office Building Assocs., 62 B.R. 798, 803 (E.D.Pa.1986)). When determining whether a compromise is in the best interests of the estate, the Court must “assess and balance the value of the claim that is being compromised against the value to the estate of the acceptance of the compromise proposal.” Myers v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir.1996) (citing TMT Trailer Ferry, 390 U.S. at 424-25, 88 S.Ct. 1157). Four criteria that a bankruptcy-court should consider in striking this balance include (1) the probability of success in litigation; (2) the likely difficulties in collection; (3) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it; and (4) the paramount interest of the creditors. Id. Additionally, the Court should consider the proposition that “[t]o minimize litigation and expedite the administration of a bankruptcy estate, ‘[compromises are favored in bankruptcy.’ ” Id. (quoting 9 Collier on Bancruptcy ¶ 9019.03[1] (15th ed.1993)); see also In re Beaulac, 294 B.R. 815, 819 (1st Cir. BAP 2003). The Debtors carry a burden of persuasion to provide the court with sufficient information to conclude that the compromise falls within the reasonable range of litigation possibilities. See In re Coram (citing In re Penn Central Transp. Co., 596 F.2d 1102, 1114 (3d Cir.1979)); In re Lawrence & Erausquin, Inc., 124 B.R. 37, 38 (Bankr.N.D.Ohio 1990). This is not, however, a burden of proof regarding the underlying claim. While a court generally gives deference to a Debtors’ business judgment in deciding whether to settle a matter, the Debtors have the burden of persuading the bankruptcy court that the compromise is fair and equitable and should be approved. In re Mickey Thompson Entertainment Group, Inc., 292 B.R. 415, 420 (9th Cir. BAP 2003); see also In re Vazquez, 325 B.R. 30, 36 (Bankr. S.D.Fla.2005) (“The court is neither to ‘rubber stamp’ the [Debtors’] proposals nor to substitute its judgment for the trustee’s.”). * * * * For" }, { "docid": "14330881", "title": "", "text": "from the beginning of time to the date hereof, excepting only obligations that heretofore arose that were or are preserved under this Settlement Agreement and/or obligations hereafter arising under this Settlement Agreement; and (xxvi) This Settlement Agreement shall become effective, as fully as if reflected in an executed settlement agreement, upon the same being approved by the Court and said Order becoming a Final Order of Court. 10. Bankruptcy Rule 9019 of the Federal Rules' of Bankruptcy Procedure provides, in pertinent part that, “[o]n motion and after notice and a hearing, the court may approve a compromise or settlement.” F.R.B.P. No. 9019(a). 11. In approving a proposed compromise or settlement, the Bankruptcy Court is required to make an “informed and independent judgment” as to whether the compromise or settlement is “fair and equitable,” based on an: Educated estimate of the complexity, expense, and likely duration of ... litigation, the possible difficulties of collecting on any judgment which might be obtained, and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise. Protective Comm. v. Anderson, 390 U.S. 414, 424, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968). 12. Guided by Protective Comm., the Third Circuit established four criteria that a bankruptcy court should consider when ruling on a motion to approve settlement: (i) the probability of success in litigation; (ii) the likely difficulties in collection; (iii) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it; and (iv) the paramount interest of creditors. Morane v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir.1996); see also Cameron & Mittle-man v. Gibbons (In re RFE Indus., Inc.), 283 F.3d 159 (3d Cir.2002). 13. When reviewing settlements, the Bankruptcy Court is not required to decide the numerous questions of law and fact raised by the parties. See In re W.T. Grant Co., 699 F.2d 599, 608 (2d Cir.1983); Neshaminy Office Bldg. Asso., 62 B.R. 798 (E.D.Pa.1986). Instead, the Bankruptcy Court will canvass the issues and see if the settlement falls below the lowest point in the range of reasonableness. Id." }, { "docid": "4563927", "title": "", "text": "the Bankruptcy Code. Nevertheless, Appellants BNSF and the Libby Claimants object to the Settlement Agreement. Specifically, both Appellants claim that they are entitled to the proceeds of Grace’s insurance policies with CNA, and that they therefore have additional rights that are infringed upon by entry of the Settlement Agreement. A. Application of the Martin Factors Rule 9019 of the Federal Rules of Bankruptcy Procedure provides that, after appropriate notice and a hearing, the court may approve a compromise or settlement. See Fed. R. Bankr.P. 9019(a). Compromises are favored in bankruptcy proceedings because they minimize litigation and expedite the administration of the bankruptcy estate. Myers v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir.1996) (quoting 9 Collier on Bankruptcy ¶ 9019.03[1] (15th ed. 1993)). Prior to approving a compromise or settlement, however, the court must “assess and balance the value of the claim that is being compromised against the value to the estate of the acceptance of the compromise proposal.” Martin, 91 F.3d at 393. The standard for ascertaining these values is determined by a consideration of four factors, commonly known collectively as “the Martin factors”: (1) the probability of success in litigation; (2) the likely difficulties in collection; (3) the complexity of the litigation involved, and the expense, inconvenience, and delay necessarily attending it; and (4) the paramount interest of the creditors. See id. (internal citations omitted). In analyzing the compromise or settlement agreement under the Martin factors, courts should not “have a ‘mini-trial’ on the merits,” In re Jasmine, Ltd., 258 B.R. 119, 123 (Bankr.D.N.J.2000) (quoting In re Neshaminy Office Bldg. Assocs., 62 B.R. 798, 803 (E.D.Pa.1986)); but rather should “canvass the issues and see whether the settlement falls below the lowest point in the range of reasonableness.” Travelers Cas. & Sur. Co. v. Future Claimants Representative, No. Civ. A. 07-2785, 2008 WL 821088, at *5 (D.N.J. Mar. 25, 2008) (citing Jasmine, 258 B.R. at 123); see also In re Pa. Truck Lines, Inc., 150 B.R. 595, 598 (E.D.Pa.1992), aff'd, 8 F.3d 812 (3d Cir.1993). In applying the four Martin factors to the instant dispute, it is" }, { "docid": "5833495", "title": "", "text": "U.S. 414, 424, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968); Myers v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir.1996). To be informed the bankruptcy court “must be apprised of all relevant information that will enable it to determine what course of action will be in the best interest of the estate.” In re Martin, 91 F.3d at 393. In its efforts to resolve the matter, “it is not necessary for a bankruptcy court to conclusively determine claims subject to a compromise, nor must the court have all of the information necessary to resolve the factual dispute, for by so doing, there would be no need of settlement.” In re Martin, 212 B.R. 316, 319 (8th Cir. BAP 1997). Nor is the court required to make a determination that the settlement is the best possible compromise. In re Coram, 315 B.R. at 330. In determining whether to approve a settlement, “[t]he court is not supposed to have a ‘mini-trial’ on the merits, but should ‘canvass the issues to see whether the settlement falls below the lowest point in the range of reasonableness.’ ” E.g., In re Jasmine, Ltd., 258 B.R. 119, 123 (D.N.J.2000) (citing In re Neshaminy Office Building Assocs., 62 B.R. 798, 803 (E.D.Pa.1986)). When determining whether a compromise is in the best interests of the estate, the Court must “assess and balance the value of the claim that is being compromised against the value to the estate of the acceptance of the compromise proposal.” Myers v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir.1996) (citing TMT Trailer Ferry, 390 U.S. at 424-25, 88 S.Ct. 1157). Four criteria that a bankruptcy-court should consider in striking this balance include (1) the probability of success in litigation; (2) the likely difficulties in collection; (3) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it; and (4) the paramount interest of the creditors. Id. Additionally, the Court should consider the proposition that “[t]o minimize litigation and expedite the administration of a bankruptcy estate, ‘[compromises are favored in bankruptcy.’ ” Id. (quoting 9 Collier" }, { "docid": "17539125", "title": "", "text": "those corporations. The settlement agreement is contingent on a favorable ruling on those matters. . See also In re Mailman Steam Carpet Cleaning Corp., 212 F.3d 632, 636 (1st Cir.2000) (noting that the bankruptcy court must determine whether the trustee’s actions are \"within the universe of reasonable actions,” not whether pressing onward might produce more funds); In re Summit Metals, Inc., 477 Fed.Appx. 18, 21 (3rd Cir.2012) (affirming the bankruptcy court’s finding that a \"proposed settlement falls above the lowest point in the range of reasonableness”); In re Holly Marine Towing, Inc., 669 F.3d 796, 801 (7th Cir.2012) (\"If the proposed settlement falls into the reasonable range of possible litigation outcomes, then it will pass the best interests [of the bankruptcy estate] test.”) (internal quotations omitted); In re W.T. Grant Co., 699 F.2d 599, 608 (2nd Cir.1983), cert. denied, 464 U.S. 822, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983) (same). . Most circuits apply similar factors. See, e.g., In re Yacovi, 411 Fed.Appx. 342, 345-46 (1st Cir.2011) (setting forth factors similar to those listed in Kopexa) (same); In re Martin, 91 F.3d 389, 393 (3rd Cir.1996) (same); In re Moore, 608 F.3d 253, 263 (5th Cir.2010); In re MQVP, Inc., 477 Fed.Appx. 310, 313 (6th Cir.2012) (same); Tri-State Financial, LLC v. Lovald, 525 F.3d 649, 654 (8th Cir.2008) (same); In re Justice Oaks II, Ltd., 898 F.2d 1544, 1549 (11th Cir.1990) (same). .See also In re Dennett, 449 B.R. 139, 145 (Bankr.D.Utah 2011) (noting that ”[t]he Court is not required to hold a mini-trial on the issues involved in the case being compromised.”); In re Southeast Banking Corp., 314 B.R. 250, 272 (Bankr.S.D.Fla.2004) (”[I]n ruling on ... [a motion under Rule 9019], the Court does not ... decide the ultimate factual and legal issues underlying the settled disputes.”). . For example, compare The Mark Andrew of the Palm Beaches, Ltd. v. GMAC Commercial Mortgage Corp., 265 F.Supp.2d 366, 382 (S.D.N.Y.2003) (Determining that \"Florida law prohibits a party from recovering through a claim of promissory estoppel what they are otherwise prohibited from recovering by [a statute requiring a writing].\"); Jesco Construction" }, { "docid": "5960547", "title": "", "text": "court looks] to the fairness of the settlement to the other parties, i.e., the parties who did not settle.” Will v. Northwestern Univ. (In re Nutraquest, Inc.), 434 F.3d 639, 645 (3d Cir.2006). Because the Plan Objectors contend that they are not getting a fair recovery under the Global Settlement, they argue that the Global Settlement is not reasonable. When determining the best interests of the estate, the Court must balance the value to the estate of accepting the settlement against the claims that are being compromised. Martin, 91 F.3d at 393. See also Nutraquest, 434 F.3d at 644-45 (tracing the history, and reaffirming the applicability, of the Martin test in considering the compromise of claims by and against the estate). In striking this balance, the Court should consider: (1) the probability of success in litigation; (2) the likely difficulties in collection; (3) the complexity, expense, and delay of the litigation involved; and (4) the paramount interest of the creditors. Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968) (finding that a bankruptcy judge should form an educated estimate of the “complexity, expense, and likely duration of such litigation, the possible difficulties of collecting on any judgment which might be obtained, and all other factors relevant to the full and fair assessment of the wisdom of the proposed compromise”); In re RFE Indus., Inc., 283 F.3d 159, 165 (3d Cir.2002) (finding that the bankruptcy court should examine four factors in deciding whether to approve a settlement: the probability of success of litigation, the likely difficulties in collection, the complexity of the litigation involved, and the interest of the credi tors); Martin, 91 F.3d at 393 (same). a. Probability of success The Plan Supporters argue that the Court must take a “holistic” approach to the Global Settlement contending that the resolution of each claim is dependent on the resolution of all the claims. The Plan Objectors disagree, contending that the Court cannot determine whether the settlement as a whole.is reasonable without evaluating the merits of each claim." }, { "docid": "16297166", "title": "", "text": "provides that a special litigation committee of the Board of Directors of the Reorganized Debtors will have full and ultimate authority over the prosecution and settlement of the Litigation Claims. Hearings to consider the two plans were held over twelve days between September 30, 2003, and April 20, 2004. At the conclusion of the confirmation hearings, the parties submitted post-confirmation briefs. The matter is now ripe for decision. II. JURISDICTION This Court has jurisdiction over confirmation of the competing plans pursuant to 28 U.S.C. §§ 1334(b) & 157(b)(2)(A) & (L). III. DISCUSSION Currently before the Court are two competing plans of reorganization. Each plan proponent contends that its plan satisfies the provisions of the Code and is preferable to the other plan, which it argues does not satisfy the Code’s requirements. A. Confirmability of the Trustee’s Plan The Equity Committee asserts that the Trustee’s Plan does not satisfy the requirements of the Code. In particular, the Equity Committee contends that the Trustee’s Plan does not satisfy section 1129(a)(3) because the R-Net Settlement and the Noteholders Settlement were not proposed in good faith. The Equity Committee also contends that the Trustee’s Plan violates the absolute priority rule and is not fair and equitable because it gives the Noteholders more than the amount of their claims by granting them releases and issuing them all of the stock of Reorganized Coram. The Trustee disagrees. He contends that he proposed both settlements in good faith because they are in the best interests of the Debtors. Further, the Trustee argues that his Plan does not violate the absolute priority rule because it provides shareholders with a greater distribution than the value of their interests. 1. Evaluation of Settlements Compromises are generally favored in bankruptcy. See Myers v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir.1996). The consensual resolution of claims minimizes litigation and expedites the administration of a bankruptcy estate. Id. Under Rule 9019 of the Federal Rules of Bankruptcy Procedure, the approval of a compromise settlement is within the sound discretion of the bankruptcy court. See, e.g., Conn. Gen. Life Ins. Co." }, { "docid": "17547596", "title": "", "text": "enough to nudge the proposed DCL Plan Settlements below the lowest point in the range of reasonableness? The Noteholders argue that a Total Distributable Value of $7.019 provides enough value to pay the Step One Lenders in full under a waterfall plan, if Step Two Debt is avoided and no post-petition interest is allowed to Senior Lenders, leaving enough value to pay Senior Noteholders well in excess of the DCL Plan Settlement amount. (Tr. 3/15/11 at 297:13-299:22). This testimony by the managing director of Aurelius is speculative and presents conclusions without adequate explanation. The Noteholders’ contend that their natural recovery under a valuation in line with the January 2011 report would increase from approximately 4.8% to 5.0%. (See NPP Amended Supplemental Objection, docket no. 8635 at 7). Even if the Note-holders’ assumptions are correct and the increase of 4.8% to 5.0% accurate, it is not significant enough to upset the DCL Plan Settlement. (C) Reasonableness of the Settlements Bankruptcy Code § 1123(b)(3)(A) provides that a plan may provide for “the settlement or adjustment of any claim or interest belonging to the debtor or to the estate.” 11 U.S.C. § 1123(b)(3)(A). It is the “duty of a bankruptcy court to determine that a proposed compromise forming part of a reorganization plan is fair and equitable.” Protective Comm. For Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424, 88 S.Ct. 1157, 1163, 20 L.Ed.2d 1 (1968). Bankruptcy courts are also tasked with approving compromises under Rule 9019 of the Federal Rules of Bankruptcy Procedure. “Settlements are favored, but the unique nature of the bankruptcy process means that judges must carefully examine settlements before approving them.” Will v. Northwestern Univ. (In re Nutraquest, Inc.), 434 F.3d 639, 644 (3d Cir.2006). “[T]he decision whether to approve a compromise under Rule 9019 is committed to the sound discretion of the Court, which must determine if the compromise is fair, reasonable, and in the interest of the estate.” In re Louise’s, Inc., 211 B.R. 798, 801 (D.Del.1997). The court should “assess and balance the value of the claim that is being compromised" }, { "docid": "5960546", "title": "", "text": "v. Pa. Truck Lines, Inc. (In re Pa. Truck Lines, Inc.), 150 B.R. 595, 598 (E.D.Pa.1992)). The Plan Supporters bear the burden of persuading the Court that the Global Settlement falls within the range of reasonableness. Key3Media Group, 336 B.R. at 93 (“While a court generally gives deference to the Debtors’ business judgment in deciding whether to settle a matter, the Debtors have the burden of persuading the bankruptcy court that the compromise is fair and equitable and should be approved.”). In addition, the Plan Supporters bear the burden of proving that the Plan complies with all of the requirements of the Bankruptcy Code for confirmation. See, e.g., In re Adelphia Commc’ns Corp., 368 B.R. 140, 252 (Bankr.S.D.N.Y.2007) (finding that the plan proponent has the burden of proof in establishing by a preponderance of evidence that its plan meets the best interest of creditors test). The Plan Objectors argue that in considering whether the Global Settlement is reasonable, the Court must determine whether it is fair to them. “Under the ‘fair and equitable’ standard, [the court looks] to the fairness of the settlement to the other parties, i.e., the parties who did not settle.” Will v. Northwestern Univ. (In re Nutraquest, Inc.), 434 F.3d 639, 645 (3d Cir.2006). Because the Plan Objectors contend that they are not getting a fair recovery under the Global Settlement, they argue that the Global Settlement is not reasonable. When determining the best interests of the estate, the Court must balance the value to the estate of accepting the settlement against the claims that are being compromised. Martin, 91 F.3d at 393. See also Nutraquest, 434 F.3d at 644-45 (tracing the history, and reaffirming the applicability, of the Martin test in considering the compromise of claims by and against the estate). In striking this balance, the Court should consider: (1) the probability of success in litigation; (2) the likely difficulties in collection; (3) the complexity, expense, and delay of the litigation involved; and (4) the paramount interest of the creditors. Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414," }, { "docid": "1213611", "title": "", "text": "LDTC further contends that the settlement was patently unreasonable because case law establishes that PBGC cannot use its own regulatory rates to calculate the amount of its Unfunded Benefit Liability Claims, and that a higher “prudent investor rate” should have been applied. Under its own regulatory rates, PBGC valued its claim at $616 million, but under the prudent investor rate, PBGC’s claim would have been valued at $168 million. Thus, LDTC contends that the $268 million dollar settlement represents a windfall of $100 million dollars beyond the “true” value of the PBGC claim. Pursuant to Bankruptcy Rule 9019, the Bankruptcy Court must determine whether a proposed settlement is in the best interest of the debtor’s estate before such a settlement is approved. See Martin, 91 F.3d at 394; In re Marvel Entm’t Group, Inc., 222 B.R. 243, 249 (D.Del.1998). In exercising its discretion to approve a settlement, the Bankruptcy Court must also “assess and balance the value of the claim that is being compromised against the value to the estate of the acceptance of the compromise proposal” in light of four factors: (1) the probability of success in the litigation, (2) the likely difficulties in collection, (3) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it, and (4) the paramount interests of the creditors. In re Martin, 91 F.3d at 393. Reviewing the record as it pertains to these issues, the Court concludes that the Bankruptcy Court did not abuse its discretion in approving the PBGC Settlement. Although the Sixth and the Tenth Circuit have held that the bankruptcy court may value the unfunded benefit liability using the “prudent investor rate,” the most recent court to consider this issue, the Bankruptcy Court for the Eastern District of Virginia, has concluded otherwise. Compare In re CSC Industries, Inc., 232 F.3d 505 (6th Cir.2000) (noting the Supreme Court’s decision in Raleigh v. Illinois Dep’t of Revenue, 530 U.S. 15, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000), but concluding that “[w]hile validity of a claim is governed by nonbankruptcy law, bankruptcy courts have the statutory authority to" }, { "docid": "17547597", "title": "", "text": "claim or interest belonging to the debtor or to the estate.” 11 U.S.C. § 1123(b)(3)(A). It is the “duty of a bankruptcy court to determine that a proposed compromise forming part of a reorganization plan is fair and equitable.” Protective Comm. For Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424, 88 S.Ct. 1157, 1163, 20 L.Ed.2d 1 (1968). Bankruptcy courts are also tasked with approving compromises under Rule 9019 of the Federal Rules of Bankruptcy Procedure. “Settlements are favored, but the unique nature of the bankruptcy process means that judges must carefully examine settlements before approving them.” Will v. Northwestern Univ. (In re Nutraquest, Inc.), 434 F.3d 639, 644 (3d Cir.2006). “[T]he decision whether to approve a compromise under Rule 9019 is committed to the sound discretion of the Court, which must determine if the compromise is fair, reasonable, and in the interest of the estate.” In re Louise’s, Inc., 211 B.R. 798, 801 (D.Del.1997). The court should “assess and balance the value of the claim that is being compromised against the value to the estate of the acceptance of the compromise proposal.” Myers v. Martin (In re Martin ), 91 F.3d 389, 393 (3d Cir.1996). In striking this balance, the court should consider: (1) the probability of success in litigation; (2) the likely difficulties in collection; (3) the complexity of the litigation involved, and the expense, inconvenience, and delay necessarily attending it; and (4) the paramount interest of creditors. Id., (citing TMT Trailer, 390 U.S. at 424-25, 88 S.Ct. at 1163-64). See also Nutraquest, 434 F.3d at 644-45 (reaffirming use of the Martin factors for approving settlement of claims by and against an estate); In re Washington Mutual, Inc., 442 B.R. 314, 328 (Bankr.D.Del.2011); In re Spansion, Inc., 2009 WL 1531788, *4 (Bankr.D.Del. June 2, 2009). In evaluating the fairness of a settlement, the court does not have to be convinced that the settlement is the best possible compromise, but only that the settlement falls within a reasonable range of litigation possibilities. Washington Mutual, 442 B.R. at 328 (citing Coram Healthcare, 315 B.R. at" }, { "docid": "5960545", "title": "", "text": "Pulver.com Inc. (In re Key3Media Group Inc.), 336 B.R. 87, 92 (Bankr.D.Del.2005) (finding that pursuant to Bankruptcy Rule 9019(a), approving a settlement is within the sound discretion of the bankruptcy court). In making its evaluation, the court must determine whether “the compromise is fair, reasonable, and in the best interest of the estate.” In re Louise’s Inc., 211 B.R. 798, 801 (D.Del.1997) (explaining the factors the court should take into consideration when deciding whether to approve a compromise under Rule 9019(a)). The court does not have to be convinced that the settlement is the best possible compromise, but only that the settlement falls within a reasonable range of litigation possibilities. In re Coram Healthcare Corp., 315 B.R. 321, 330 (Bankr.D.Del.2004) (finding that the proper test to apply in the determination of whether to approve a proposed compromise is if the compromise falls “within the reasonable range of litigation possibilities”). Therefore, the settlement need only be above “the lowest point in the range of reasonableness.” Id. (citing Official Unsecured Creditors’ Comm. of Pa. Truck Lines. Inc. v. Pa. Truck Lines, Inc. (In re Pa. Truck Lines, Inc.), 150 B.R. 595, 598 (E.D.Pa.1992)). The Plan Supporters bear the burden of persuading the Court that the Global Settlement falls within the range of reasonableness. Key3Media Group, 336 B.R. at 93 (“While a court generally gives deference to the Debtors’ business judgment in deciding whether to settle a matter, the Debtors have the burden of persuading the bankruptcy court that the compromise is fair and equitable and should be approved.”). In addition, the Plan Supporters bear the burden of proving that the Plan complies with all of the requirements of the Bankruptcy Code for confirmation. See, e.g., In re Adelphia Commc’ns Corp., 368 B.R. 140, 252 (Bankr.S.D.N.Y.2007) (finding that the plan proponent has the burden of proof in establishing by a preponderance of evidence that its plan meets the best interest of creditors test). The Plan Objectors argue that in considering whether the Global Settlement is reasonable, the Court must determine whether it is fair to them. “Under the ‘fair and equitable’ standard, [the" }, { "docid": "4563926", "title": "", "text": "pre-petition settlement agreements or otherwise, for payment of retrospective premiums and indemnification for asbestos-related claims asserted against CNA. CNA also relinquishes its right to assert “indirect claims” against the PI Trust seeking indemnity and contribution from Grace, gives up numerous defenses to coverage under both the primary and excess policies, consents to the assignment of its insurance rights to the PI Trust, and agrees to withdraw, without prejudice, any Proofs of Claims it filed against the PI Trust, as well as its objections to the Joint Plan. In return, Grace will release CNA from claims under the policies for coverage of any asbestos-related claims. Moreover, the Settlement Agreement calls for CNA to be designated as a “Settled Asbestos Insurance Company” under Grace’s Joint Plan. After extensive briefing and oral argument, the Bankruptcy Court approved the Settlement Agreement on January 22, 2011. In entering its Approval Order and corresponding findings of fact and conclusions of law, the Bankruptcy Court found that the Settlement fully satisfied the requirements of both Third Circuit precedent and relevant provisions of the Bankruptcy Code. Nevertheless, Appellants BNSF and the Libby Claimants object to the Settlement Agreement. Specifically, both Appellants claim that they are entitled to the proceeds of Grace’s insurance policies with CNA, and that they therefore have additional rights that are infringed upon by entry of the Settlement Agreement. A. Application of the Martin Factors Rule 9019 of the Federal Rules of Bankruptcy Procedure provides that, after appropriate notice and a hearing, the court may approve a compromise or settlement. See Fed. R. Bankr.P. 9019(a). Compromises are favored in bankruptcy proceedings because they minimize litigation and expedite the administration of the bankruptcy estate. Myers v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir.1996) (quoting 9 Collier on Bankruptcy ¶ 9019.03[1] (15th ed. 1993)). Prior to approving a compromise or settlement, however, the court must “assess and balance the value of the claim that is being compromised against the value to the estate of the acceptance of the compromise proposal.” Martin, 91 F.3d at 393. The standard for ascertaining these values is determined by" }, { "docid": "3988258", "title": "", "text": "Trans. Corp. Sec. Litig.), 730 F.2d 1128, 1135 (8th Cir.1984). In exercising its discretion under Rule 9019, the bankruptcy court must consider four factors bearing on the settlement’s reasonableness. It must consider: (1) the probability of success in the litigation; (2) the difficulties, if any, to be encountered in the matter of collection; (3) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it; (4) the paramount interest of the creditors and a proper deference to their reasonable views in the premises. In re Flight Trans. Corp. Sec. Litig., 730 F.2d at 1135 citing Drexel v. Loomis, 35 F.2d 800, 806 (8th Cir.1929). When considering reasonableness, there is no best compromise, only a range of reasonable compromises. So as long as the one before the court falls within that range, it may be approved. Nangle v. Surratt-States (In re Nangle), 288 B.R. 213, 220 (8th Cir. BAP 2003). (Stating that compromise is an art, not a science). An abuse of discretion occurs when a bankruptcy court does not weigh these factors and then approves or rejects the proposed settlement. ReGen Capital III, Inc. v. Official Comm, of Unsecured Creditors (In re Trism, Inc.), 282 B.R. 662 at 667 (8th Cir. BAP 2002). In its July 13, 2005 order, the bankruptcy court stated that the United States was able to obtain a forfeiture of all of the assets in the estate despite the bankruptcy case. The bankruptcy court did not make any findings of fact, nor did it otherwise articulate a legal basis for its order. The court stated that PW’s argument against approval of the settlement was without merit and that approval was in the best interests of the bankruptcy estate. The bankruptcy court did not have any evidence from which it could determine reasonableness under the four criteria set out in In re Flight Transportation. CONCLUSION We conclude that the bankruptcy court abused its discretion when it approved the stipulation between the trustee and the United States without holding a hearing. We reverse the bankruptcy court’s order and remand this case for proceedings not" }, { "docid": "5960543", "title": "", "text": "the issue could be addressed. (Ex. D-21.) Subsequently, an application was filed by the Debtors to hire conflicts counsel to pursue the other claims the estate had against JPMC. (Ex. D-26.) As noted above the Debtors did sue JPMC shortly after the case was commenced for turnover of the $4 billion in Deposit Accounts held at JPMC and vigorously defended the JPMC Adversary. All of the litigation between the parties was contentious and hard-fought, even efforts by the Debtors to obtain discovery from JPMC. During the course of that litigation, the Court personally observed the actions of the Debtors’ professionals and finds no evidence that they failed to represent adequately the interests of the estate. The Plan Objectors presented no evidence to the contrary other than the insinuation that because there was a potential conflict, there must have been undue influence exerted by JPMC on the Debtors’ professionals. This case is clearly distinguishable from the Coram case where direct evidence of an actual conflict was presented (that the Debtor’s CEO was being paid $1 million a year as a “consultant” by one of the largest creditors while serving as an officer of the Debtor). 271 B.R. at 231. This case is also distinguishable from the Project Orange case. In that case the conflicts waiver severely limited counsel’s ability to bring suit against the creditor or even to threaten suit. 431 B.R. at 375. In contrast, in this case Debtor’s counsel was permitted to sue JPMC over the Deposit Accounts. Further, the Project Orange Court acknowledged that in most cases the use of conflicts counsel solves the problem. Id. Therefore, the Court rejects the Plan Objectors’ argument that the potential conflict taints the Global Settlement or makes it unapprovable. 2. Standard of review Compromises are generally favored in bankruptcy. See, e.g., Myers v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir.1996) (finding that compromises help expedite case administration and minimize litigation). The approval of a settlement under Rule 9019 of the Federal Rules of Bankruptcy Procedure is committed to the discretion of the bankruptcy court. Key3Media Group, Inc. v." }, { "docid": "16297167", "title": "", "text": "Settlement were not proposed in good faith. The Equity Committee also contends that the Trustee’s Plan violates the absolute priority rule and is not fair and equitable because it gives the Noteholders more than the amount of their claims by granting them releases and issuing them all of the stock of Reorganized Coram. The Trustee disagrees. He contends that he proposed both settlements in good faith because they are in the best interests of the Debtors. Further, the Trustee argues that his Plan does not violate the absolute priority rule because it provides shareholders with a greater distribution than the value of their interests. 1. Evaluation of Settlements Compromises are generally favored in bankruptcy. See Myers v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir.1996). The consensual resolution of claims minimizes litigation and expedites the administration of a bankruptcy estate. Id. Under Rule 9019 of the Federal Rules of Bankruptcy Procedure, the approval of a compromise settlement is within the sound discretion of the bankruptcy court. See, e.g., Conn. Gen. Life Ins. Co. v. United Cos. Fin Corp. (In re Foster Mortgage Corp.), 68 F.3d 914, 917-18 (5th Cir.1995); LaSalle Nat’l Bank v. Holland (In re Am. Reserve Corp.), 841 F.2d 159, 162 (7th Cir.1987). In approving a settlement, the court does not have to be convinced that the settlement is the best possible compromise. Nellis v. Shugrue, 165 B.R. 115, 123 (S.D.N.Y.1994). Rather, the court must only conclude that the compromise or settlement falls within the reasonable range of litigation possibilities. In re Penn Central Transp. Co., 596 F.2d 1102, 1114 (3d Cir.1979). That is, the settlement need only be above “the lowest point in the range of reasonableness.” Official Unsecured Creditors’ Comm. of Pa. Truck Lines. Inc. v. Pa. Truck Lines, Inc. (In re Pa. Truck Lines, Inc.), 150 B.R. 595, 598 (E.D.Pa.1992). When determining whether to approve a settlement, the bankruptcy court should consider: (1) the probability of success in the litigation; (2) the complexity, expense, and delay of the litigation involved; (3) the possible difficulties in collection; and (4) the paramount interests of creditors." }, { "docid": "11136903", "title": "", "text": "dismissal with prejudice of the § 727 proceeding. The trustee asserted in his motion to approve the settlement that settlement on these terms was in the best interest of the bankruptcy estate. The Bankruptcy Court did not consider the merits of the settlement because it concluded that compromise was not appropriate on any terms. Maynard, 258 B.R. at 95-96. On remand, the Court should make an informed, objective judgment as to whether the proposed compromise is fair and equitable, assessing the probability of success should the claim be litigated, estimating the “complexity, expense, and likely duration of [the] litigation, the possible difficulties of collecting on any judgment which might be obtained, and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise.” Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968). See also Myers v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir.1996) (applying standard to settlement agreement in Chapter 7 case); In re Purofied Down Prods. Corp., 150 B.R. 519, 523 (S.D.N.Y.1993) (same). Essentially the Court should “compare the terms of the compromise with the likely rewards of litigation,” TMT, 390 U.S. at 425, 88 S.Ct. 1157, keeping the best interests of the estate paramount. Conclusion Although the Bankruptcy Court’s concern to protect the integrity of the bankruptcy system and avoid the taint of compromise is entirely laudable, a blanket prohibition on settlement of § 727 cases is not justified by the language of Bankruptcy Rule 7041, the majority of jurisdictions that have considered the matter, or countervailing public policy concerns favoring dispute resolution. Accordingly, the decision of the Bankruptcy Court is reversed and the case remanded for the Court to exercise its judgment to determine whether the terms of the settlement are fair and equitable and in the best interests of the estate, and to fashion case-appropriate terms and conditions if necessary to protect other creditors. . Rule 41(a)(1) permits dismissal by a plaintiff without order of court either by filing a notice of dismissal" }, { "docid": "5960544", "title": "", "text": "a year as a “consultant” by one of the largest creditors while serving as an officer of the Debtor). 271 B.R. at 231. This case is also distinguishable from the Project Orange case. In that case the conflicts waiver severely limited counsel’s ability to bring suit against the creditor or even to threaten suit. 431 B.R. at 375. In contrast, in this case Debtor’s counsel was permitted to sue JPMC over the Deposit Accounts. Further, the Project Orange Court acknowledged that in most cases the use of conflicts counsel solves the problem. Id. Therefore, the Court rejects the Plan Objectors’ argument that the potential conflict taints the Global Settlement or makes it unapprovable. 2. Standard of review Compromises are generally favored in bankruptcy. See, e.g., Myers v. Martin (In re Martin), 91 F.3d 389, 393 (3d Cir.1996) (finding that compromises help expedite case administration and minimize litigation). The approval of a settlement under Rule 9019 of the Federal Rules of Bankruptcy Procedure is committed to the discretion of the bankruptcy court. Key3Media Group, Inc. v. Pulver.com Inc. (In re Key3Media Group Inc.), 336 B.R. 87, 92 (Bankr.D.Del.2005) (finding that pursuant to Bankruptcy Rule 9019(a), approving a settlement is within the sound discretion of the bankruptcy court). In making its evaluation, the court must determine whether “the compromise is fair, reasonable, and in the best interest of the estate.” In re Louise’s Inc., 211 B.R. 798, 801 (D.Del.1997) (explaining the factors the court should take into consideration when deciding whether to approve a compromise under Rule 9019(a)). The court does not have to be convinced that the settlement is the best possible compromise, but only that the settlement falls within a reasonable range of litigation possibilities. In re Coram Healthcare Corp., 315 B.R. 321, 330 (Bankr.D.Del.2004) (finding that the proper test to apply in the determination of whether to approve a proposed compromise is if the compromise falls “within the reasonable range of litigation possibilities”). Therefore, the settlement need only be above “the lowest point in the range of reasonableness.” Id. (citing Official Unsecured Creditors’ Comm. of Pa. Truck Lines. Inc." } ]

[ { "docid": "8381273", "title": "", "text": "in the plaintiffs complaint. Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 14, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). This rule makes a plaintiff the “master of his complaint”: He may generally avoid federal jurisdiction by pleading solely state-law claims. Balcorta, 208 F.3d at 1106. An exception to the general rule exists, however, when thé preemptive force of a statute is so strong that it “completely preempt[s]” an area of state law. Id. at 1107; see also Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). In such circumstances, federal law displaces a plaintiffs state-law claim, no matter how carefully pleaded. Gregory v. SCIE, LLC, 317 F.3d 1050, 1052 (9th Cir.2003). This is because the “claim purportedly based on ... [a] preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Balcorta, 208 F.3d at 1107 (citing Franchise Tax Bd., 463 U.S. at 24, 103 S.Ct. 2841). The complete preemption exception to the well-pleaded complaint rule is applied primarily under § 301 of the LMRA. Id. That section vests jurisdiction in federal courts over “[sjuits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce.” 29 U.S.C. § 185(a). Although the text of § 301 contains only a jurisdictional grant, the Supreme Court has interpreted it to compel the complete preemption of state law claims brought to enforce collective bargaining agreements. Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists & Aerospace Workers, 390 U.S. 557, 560, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). In addition, although the language of § 301 is limited to “[sjuits for violation of contracts,” the Supreme Court has expanded § 301 preemption to include cases the resolution of which “is substantially dependent upon analysis of the terms of [a collective bargaining agreement].” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); see also Franchise Tax Bd., 463 U.S. at 23, 103 S.Ct. 2841; see" } ]

[ { "docid": "3409511", "title": "", "text": "state cause of action ‘for violation of contracts between an employer and a labor organization.’ ” Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983). “State law is thus ‘pre-empted’ by § 301 in that only the federal law fashioned by the courts under § 301 governs the interpretation and application of collective-bargaining agreements.” United Steelworkers of America v. Rawson, — U.S. -, 110 S.Ct. 1904, 1909, 109 L.Ed.2d 362 (1990). The preemptive reach of section 301, however, is by no means boundless. Section 301 preempts only state law claims that are “substantially dependent on analysis of a collective-bargaining agreement,” see, e.g., International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 2166-67 n. 3, 95 L.Ed.2d 791 (1987), not claims that only “tangentially” involve CBA provisions. See, e.g., Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206 (1985). Furthermore, a defendant’s reliance on a CBA term purely as a defense to a state law claim does not result in section 301 preemption. See Caterpillar, 482 U.S. at 399, 107 S.Ct. at 2433; accord Smolarek v. Chrysler Corp., 879 F.2d 1326, 1334 (6th Cir.) (en banc), cert. denied, — U.S. -, 110 S.Ct. 539, 107 L.Ed.2d 537 (1989). Underlying these basic rules is the fundamental precept that “§ 301 preemption merely ensures that federal law will be the basis of interpreting collective-bargaining agreements, and says nothing about the substantive rights a State may provide to workers when adjudication of those rights does not depend upon interpretation of such agreements.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409, 108 S.Ct. 1877, 1878, 100 L.Ed.2d 410 (1988) (footnote omitted). Accordingly, whenever a plaintiffs state law claim “can be resolved without interpreting the [CBA] itself, the claim is 'independent’ of the [CBA] for § 301 preemption purposes.” Id. at 410, 108 S.Ct. at 1878 (footnote omitted). Applying these principles, we must analyze six of the plaintiffs’ state law claims to determine which, if any, are preempted" }, { "docid": "17186221", "title": "", "text": "court held that this was barred by the Massachusetts statutory scheme contained in ch. 152 § 75B. Id. at 750-51. The district court subsequently denied plaintiff’s motion for reconsideration. This appeal followed. DISCUSSION 1. Jurisdiction The first issue raised by plaintiff on appeal is whether the district court proper ly exercised removal jurisdiction over his claims. In the absence of diversity jurisdiction, the district court generally has jurisdiction “only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). Under a well established exception' to the “well pleaded complaint rule,” however, any state law claim which is subject to complete preemption under Section 301 of the LMRA is considered a claim arising under federal law within the district court’s jurisdiction. See generally Caterpillar, 482 U.S. at 393-94, 107 S.Ct. at 2430-31. Section 301 completely preempts a state law claim, “if the resolution of [the] state-law claim depends upon the meaning of a collective bargaining agreement.” Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 1881, 100 L.Ed.2d 410 (1988). See also Caterpillar, 482 U.S. at 394, 107 S.Ct. at 2430 (section 301 completely preempts claims which are “substantially dependent on analysis of a collective-bargaining agreement”); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206 (1985) (“[W]hen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim or dismissed as pre-empted by labor-contract law.”) (citation omitted). Where such preemption is applicable, “federal labor-law principles—necessarily uniform throughout the nation—must be employed to resolve the dispute.” Lingle, 486 U.S. at 406, 108 S.Ct. at 1881. Plaintiff does not dispute that an employee’s state law claims against his employer are subject to complete preemption if the claims are dependent on the interpretation of a collective bargaining agreement. He argues, however, that his employment relationship with Sexton" }, { "docid": "1789288", "title": "", "text": "Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430. To ensure uniform interpretation of collective bargaining agreements, § 301 requires that federal rules of law be applied. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403, 108 S.Ct. 1877, 1880, 100 L.Ed.2d 410 (1988); Loewen Group Int’l, Inc. v. Haberichter, 65 F.3d 1417, 1421 (7th Cir.1995). Even if a plaintiff makes no mention of § 301 in a complaint, § 301 nevertheless may displace entirely a state cause of action, allowing removal by the defendant under the complete preemption exception to the well-pleaded complaint rule.. Section 301 preempts claims directly founded on or “substantially dependent on analysis of a collective-bargaining agreement.” Caterpillar, 482 U.S. at 394, 107 S.Ct. at 2431 (quoting International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 2167 n. 3, 95 L.Ed.2d 791 (1987)); Loewen, 65 F.3d at 1421. When the “heart of the [state law] complaint [is] a ... clause in the collective bargaining agreement, that complaint arises under federal law.” Caterpillar, 482 U.S. at 394, 107 S.Ct. at 2430 (quoting Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists and Aerospace Workers, 390 U.S. 557, 558, 88 S.Ct. 1235, 1236, 20 L.Ed.2d 126 (1968)). If the resolution of a state law claim depends on the meaning of, or requires the interpretation of, a collective bargaining agreement, the application of state law is preempted and federal labor law principles must be employed to resolve the dispute. Lingle, 486 U.S. at 405-06, 407, 409-10, 413, 108 S.Ct. at 1881, 1882, 1883, 1885; Loewen, 65 F.3d at 1421. Even if explicit terms of the collective bargaining agreement may not be on point, it is a matter of federal contract interpretation whether the words of a collective bargaining agreement create implied rights. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 215, 105 S.Ct. 1904, 1913, 85 L.Ed.2d 206 (1985); Douglas, 877 F.2d at 573. In sum, if it is necessary to interpret express or implied terms of a CBA, a state law claim is completely preempted by §" }, { "docid": "21854352", "title": "", "text": "Defendants contend that the claims in the 2001 Action are completely preempted by § 301. B. Section 301 Of The LMRA “The complete pre-emption corollary to the well-pleaded complaint rule is applied primarily in cases raising claims pre-empted by § 301 of the LMRA.” Caterpillar Inc., 482 U.S. at 393, 107 S.Ct. 2425. Section 301 of the LMRA provides in pertinent part that: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185(a). Section 301 vests federal courts with jurisdiction over controversies which involve collective bargaining agreements and authorizes those courts “to fashion ‘a body of federal law for the enforcement of these collective bargaining agreements.’ ” United Steelworkers of America, AFL-CIO-CLC v. Rawson (1990) 495 U.S. 362, 368, 110 S.Ct. 1904, 109 L.Ed.2d 362 (quoting Textile Workers Union of America v. Lincoln Mills of Alabama (1957) 353 U.S. 448, 451, 77 S.Ct. 912, 1 L.Ed.2d 972). The policies that animate § 301 “require that ‘the relationships created by [a collective-bargaining] agreement’ be defined by application of ‘an evolving federal common law grounded in national labor policy.’ ” Allis-Chalmers Corp. v. Lueck (1985) 471 U.S. 202, 210-211, 105 S.Ct. 1904, 85 L.Ed.2d 206 (quoting Bowen v. United States Postal Service (1983) 459 U.S. 212, 224-225, 103 S.Ct. 588, 74 L.Ed.2d 402). An application of state law is therefore preempted by § 301 “if such application requires the interpretation of a collective-bargaining agreement.” Lingle v. Norge Division of Magic Chef, Inc. (1988) 486 U.S. 399, 413, 108 S.Ct. 1877, 100 L.Ed.2d 410; see also United Steelworkers of America, AFL-CIO-CLC, 495 U.S. at 368, 110 S.Ct. 1904 (“State law is thus ‘preempted’ by § 301 in that only the federal law fashioned by the courts under § 301 governs the interpretation and application of collective bargaining" }, { "docid": "1365088", "title": "", "text": "§ 185, which has been construed to make federal law the exclusive remedy not only for claims based on collective bargaining contracts but also for claims that cannot be adjudicated without interpreting such a contract. E.g., United Steelworkers of America v. Rawson, 495 U.S. 362, 368-69, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990); Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410, 407, 410 n. 10 (1988); Int’l Brotherhood of Electrical Workers v. Hechler, 481 U.S. 851, 857-89, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). The judge thought this such a case. It may seem that an alternative mode of disposition, ordinarily preferable when as here the federal claim (the claim of age discrimination) drops out before trial, would have been to dismiss the tort claim without prejudice. 28 U.S.C. § 1367(c)(3); Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir.1999); Hedges v. Musco, 204 F.3d 109, 123 (3d Cir.2000). But a peculiarity of section 301, as it has been interpreted by the courts, is that any claim within its scope, even if denominated as a state law claim, is deemed to arise under, and only under, section 301, that is, under federal law. E.g., United Steelworkers of America v. Rawson, supra, 495 U.S. at 368-69, 110 S.Ct. 1904, 109 L.Ed.2d 362; Caterpillar Inc. v. Williams, 482 U.S. 386, 392-94, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Franchise Tax Board v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 22-24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); In re Amoco Petroleum Additives Co., 964 F.2d 706, 709 (7th Cir.1992). So if the district judge was correct that section 301 occupies the field sought to be traversed by Kimbro’s tort claim, the claim arose under federal law and federal jurisdiction was therefore secure even though the only explicit federal claim dropped out before trial. Here are the facts, construed as favorably to the plaintiff as the record permits: Kimbro was a route sales" }, { "docid": "8934708", "title": "", "text": "defendants’ motion for summary judgment began by considering when claims apparently arising under state law are preempted by federal labor law. In the last decade, the Supreme Court has handed down four significant opinions on that question: 1) Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); 2) International Brotherhood of Electrical Workers, A.F.L.-C.I.O. v. Hechler, 481 U.S. 851, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987); 3) Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); and, 4) Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). After reviewing these cases, the district court held that a claim made by the plaintiffs under state law would be fully preempted by federal labor law if it arose from or required the interpretation of any of the collective-bargaining agreements relevant to the case. See Lingle, 486 U.S. at 405-06, 108 S.Ct. at 1881 (“Thus Lueck faithfully applied the principle of [LMRA] § 301 preemption ...: if the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is preempted and federal labor-law principles— necessarily uniform throughout the nation — must be employed to resolve the dispute.”); Williams, 482 U.S. at 395, 107 S.Ct. at 2431 (“[For preemption purposes, sjection 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement.’ Electrical Workers v. Heckler, 481 U.S. at 859 n. 3, 107 S.Ct. at 2166-67 n. 3....”). After reviewing plaintiffs’ allegations of fraud under this standard, the district court concluded that “virtually every fraudulent representation allegedly made by [defendants relates in one way or another to the terms of the various collective-bargaining agreements.” For that reason, the court held that plaintiffs’ claim for fraud under state law was “substantially dependent” on the terms of the collective-bargaining agreement and therewith preempted by federal labor law. To reach this" }, { "docid": "11541779", "title": "", "text": "U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The Supreme Court has held that under the complete preemption doctrine, “the preemptive force of some statutes is so strong that they ‘completely preempt’ an area of state law.” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1107 (9th Cir.2000) (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). In such instances, any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law. Id. (citing Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). DISCUSSION A. Whether Plaintiffs’ State Law Claims are Preempted by the LMRA Section 301 of the LMRA governs claims founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective-bargaining agreement. Caterpillar, Inc., 482 U.S. at 394, 107 S.Ct. 2425. The LMRA does not preempt an employee’s independent, freestanding state rights. Id. at 395, 107 S.Ct. 2425. However, “if the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law ... is pre-empted” Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 405-406, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). The “bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.” Invadas v. Bradshaw, 512 U.S. 107, 124, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) (citing Lingle, 486 U.S. at 413 n. 12, 108 S.Ct. 1877). A court may also look to the CBA to determine whether it contains a clear and unmistakable waiver of state law rights without triggering § 301 preemption. Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 692 (9th Cir.2001)(cre banc). The complete preemption doctrine does not abrogate the general rule that a defense of preemption does not create federal question jurisdiction. Caterpillar, Inc., 482 U.S. at 398-99, 107 S.Ct. 2425; see also Ben. Natl Bank v. Anderson, 539 U.S." }, { "docid": "21573083", "title": "", "text": "of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 1881 n. 5, 100 L.Ed.2d 410 (1988) (discussing Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), and Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). In Caterpillar, a unanimous Supreme Court noted that, in cases raising claims under section 301, the Court employs the so-called “complete preemption” doctrine. 482 U.S. at 393, 107 S.Ct. at 2430. Under this approach, the preemptive force of section 301 “ ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’ ” Id. (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987)). As the Supreme Court explained in Caterpillar, “[o]nce an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Id.; see also Franchise Tax Bd. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 24, 103 S.Ct. 2841, 2854, 77 L.Ed.2d 420 (1983) (“[I]f a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.”). Thus, state-law claims preempted by section 301 are properly removable to federal court despite a plaintiff's failure to plead explicitly a federal cause of action. See Lingle, 108 S.Ct. at 1881 n. 5. B. In determining whether Ms. Douglas’ state-based claim for the intentional infliction of emotional distress is pre-empted by section 301, our analysis must be governed by the recent holding of the Supreme Court of the United States in Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). There, the Supreme Court emphasized that the appropriate approach is a straightforward one: “an application of state law is pre-empted by § 301 ... only if such application requires" }, { "docid": "501284", "title": "", "text": "et seq. Doubts as to removability are usually resolved in favor of remanding the case to state court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); See also Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir.1988). The defendant has the burden of establishing that removal is proper. See Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n. 3 (9th Cir.1990). Removal is only appropriate for cases that might have originally been brought in federal court. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Cases arise under federal law only if the complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on the resolution of substantial questions of federal law. See Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The plaintiff is the master of the claim, and federal jurisdiction exists only when a federal question is presented on the face of the properly pleaded complaint. See Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425 (citing Gully v. First Nat'l Bank, 299 U.S. 109, 112-13, 57 S.Ct. 96, 81 L.Ed. 70 (1936)). “[I]t is well settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Id. at 393, 107 S.Ct. 2425 (italics in original) (citing Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. at 12, 103 S.Ct. 2841.) However, there exists an “ ‘independent corollary’ to the well-pleaded complaint rule” called the “ ‘complete preemption’ ” doctrine. Id. at 393, 107 S.Ct. 2425 (quoting Franchise Tax Board, 463 U.S. at 22, 103 S.Ct. 2841). Complete preemption occurs where the “preemptive force of a statute” is so" }, { "docid": "8697072", "title": "", "text": "482 U.S. at 393, 107 S.Ct. 2425 (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). This “independent corollary” to the well-pleaded complaint rule is known as the “complete preemption” doctrine. Id. “Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Id.; see Beneficial Nat’l Bank, 539 U.S. at 8, 123 S.Ct. 2058 (“When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.”). In such situations, the federal statute “not only preempt[s] state law but also authorized removal of actions that sought relief only under state law.” Beneficial Nat’l Bank, 539 U.S. at 6-7, 123 S.Ct. 2058. C. Complete Preemption 1. The Supreme Court has applied the complete preemption doctrine in cases that raise claims preempted by section 301 of the LMRA. Caterpillar Inc., 482 U.S. at 393, 107 S.Ct. 2425. Section 301 provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185(a). Section 301 “governs claims founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective bargaining agreement.’ ” Caterpillar Inc., 482 U.S. at 394, 107 S.Ct. 2425 (quoting Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987), and citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)); see also Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 100 L.Ed.2d 410" }, { "docid": "3601663", "title": "", "text": "in the alternative, summary judgment. II. On appeal the union members first contend that removal on the basis of federal question jurisdiction was improper. Under the well-pleaded complaint rule, a district court has federal question jurisdiction if “a federal question is presented on the face of the plaintiffs’ properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). The plaintiffs argue that their complaint properly alleges claims arising under only state law. There is, however, an independent corollary to the well-pleaded complaint rule which holds that in certain circumstances the preemptive force of a federal statute is so “extraordinary” that it “converts” a complaint alleging only state law claims “into one stating a federal claim for purposes of the well-pleaded complaint rule.” Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 1547, 95 L.Ed.2d 55 (1987). This so-called “complete preemption” doctrine, see Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430, has been recognized primarily in labor cases involving state law claims that are preempted by section 301(a) of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185(a) (1988). See, e.g., id. at 393-94, 107 S.Ct. at 2430-31; Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). Section 301(a) provides, in pertinent part, that “[s]uits for violations of contracts between an employer and a labor organization ... or between any such labor organizations, may be brought in the district court of the United States_” 29 U.S.C. § 185(a). This section has been found to preempt state law claims that are “founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement.’ ” Caterpillar, 482 U.S. at 394, 107 S.Ct. at 2431 (quoting International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 2166 n. 3, 95 L.Ed.2d 791 (1987)); see also, e.g. United Steelworkers of Am. v. Rawson, — U.S. -, 110 S.Ct. 1904, 1909-10, 109 L.Ed.2d 362 (1990). The plaintiffs argue" }, { "docid": "19348839", "title": "", "text": "L.Ed.2d 420 (1983). If a federal cause of action completely preempts a state-law claim, “any complaint that comes within the scope of the federal cause of action necessarily 'arises under’ federal law,” id. at 24, 103 S.Ct. at 2854, and is removable to federal court. The Supreme Court has held that the preemptive effect of a federal statute may be so “extraordinary” that it “converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 1547, 95 L.Ed.2d 55 (1987). The complete preemption exception to the well-pleaded complaint rule “is applied primarily in cases raising claims preempted by § 301 of the LMRA.” Caterpillar, 107 S.Ct. at 2430. If appellant’s claims are preempted by § 301 of the LMRA, removal was appropriate in this case. B. We turn next to the nature of the preemption inquiry itself. Section 301(a) of the LMRA, 29 U.S.C. § 185(a), provides that: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties .... In Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 77 S.Ct. 912, 915, 1 L.Ed.2d 972 (1957), the Supreme Court held that § 301 not only provides federal jurisdiction over controversies involving collective bargaining agreements but also authorizes federal courts to fashion a body of federal law for the enforcement of collective bargaining agreements. The principle of § 301 preemption of state-law claims was more fully developed in later decisions. The Court concluded in Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962), that Congress enacted § 301 with the intent that federal labor law doctrines would uniformly prevail over inconsistent state law. See also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). However, in Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 1882-83, 100" }, { "docid": "5317495", "title": "", "text": "the master of the claim; he or she may avoid the federal jurisdiction by exclusive reliance on state law. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987) (footnote omitted); see also Oklahoma Tax Comm’n v. Graham, — U.S. -, 109 S.Ct. 1519, 1521, 103 L.Ed.2d 924 (1989) (per curiam) (discussing Caterpillar). In the context of employment-related actions, however, a claim purportedly based solely on state law may, under appropriate circumstances, be removable because § 301 of the LMRA has preempted that particular area of state law. In other words, “any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430. Thus, in the cases we now consider, the issues of federal preemption and removability largely merge; we must focus on whether plaintiffs’ state-law claims are preempted by § 301 so as to place them within the scope of the “complete preemption” corollary to the well-pleaded complaint rule. In a series of cases, the Supreme Court has made clear that § 301 of the LMRA preempts any state-law claim arising from a breach of a collective bargaining agreement. See Textile Workers Union v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); see also Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). The purpose of this rule is to require that all claims raising issues of labor contract interpretation be decided according to the precepts of federal labor law in order to prevent inconsistent interpretations of the substantive provisions of collective bargaining agreements. Lucas Flour, 369 U.S. at 103, 82 S.Ct. at 576. Thus, Lueck faithfully applied the principle of § 301 preemption developed in Lucas Flour: if the resolution of a state-law claim depends upon" }, { "docid": "184044", "title": "", "text": "well-pleaded complaint rule known as the complete preemption doctrine. “Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Id. at 393, 107 S.Ct. 2425. The complete preemption doctrine “converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) (ERISA preemption); see also DeSantiago v. Laborers Intern. Union of North America, Local No. 1140, 914 F.2d 125, 127 (8th Cir.1990). The Supreme Court has recognized the complete preemption doctrine primarily in labor cases involving state law claims that are preempted by § 301(a) of the LMRA, 29 U.S.C. § 185(a). See, e.g., Caterpillar, 482 U.S. at 393-94, 107 S.Ct. 2425; Avco Corp. v. Aero Lodge No. 735, Intern. Ass’n of Machinists, 390 U.S. 557, 558, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). Section 301(a) provides, in part, that “[s]uits for violation of contracts-between an employer and a labor organization ... or between any such labor organizations, may be brought in any district court of the United States,” 29 U.S.C. § 185(a), and completely preempts state law claims founded “directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement.’ ” Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425 (quoting IBEW v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987)). Where a state law claim is based on a collective bargaining agreement or is “inextricably intertwined” with the contents of a collective bargaining agreement, the claim is subject to § 301(a) preemption. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) (Lueck). Appellants argue that their state law claims are not preempted by § 301(a) because their claims are purely factual and do not depend upon the interpretation, analysis, or construction of a collective bargaining agreement. Appellants rely on the Iowa Supreme Court’s" }, { "docid": "19349149", "title": "", "text": "996 (9th Cir.1987). Under the “complete pre-emption” doctrine, however, the pre-emptive force of a statute [may be] so “extraordinary” that it “converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law. Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430 (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987) (footnote omitted)); see also Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1285 (9th Cir.1989); Newberry, 854 F.2d at 1146; Young, 830 F.2d at 996-97. The complete preemption corollary to the well-pleaded complaint rule is most often applied in cases raising claims preempted by section 301 of the LMRA. Section 301(a) provides federal jurisdiction over “[s]uits for violation of contracts between an employer and a labor organization.” 29 U.S.C. § 185(a). [T]he pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action “for violation of contracts between an employer and a labor organization.” Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983) (footnote omitted); accord Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 558, 88 S.Ct. 1235, 1236, 20 L.Ed.2d 126 (1968) (when “[t]he heart of the [state law] complaint [is] a ... clause in the collective bargaining agreement,” the complaint arises under federal law); Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 1881 & nn. 4, 5, 100 L.Ed.2d 410 (1988); International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 856-57, 107 S.Ct. 2161, 2165-66, 95 L.Ed.2d 791 (1987); Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430;" }, { "docid": "22276605", "title": "", "text": "for breach of the CBA, and held that it was preempted under § 301. Id. at 215, 105 S.Ct. 1904 (“[I]t is a question of federal contract interpretation whether there was an obligation under this labor contract to provide the payments' in a timely manner, and, if so, whether Allis-Chalmers’ conduct breached that implied contract provision.”). The Court reiterated its test for preemption in Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Although acknowledging that “the pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action for violation of contracts between an employer and a labor organization,” the Court explained that § 301 preempts only “claims founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement.’ ” Id. at 394, 107 S.Ct. 2425 (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (internal quotation marks omitted); Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987)). The Court made clear that the complaints of employees covered by a CBA were not preempted if their claims were unrelated to the terms of the CBA, specifically rejecting the employer’s contention that “all employment-related matters involving unionized employees be resolved through collective bargaining and thus be governed by a federal common law created by § 301.” Id. at 396 n. 10, 107 S.Ct. 2425 (internal quotation marks omitted). Moreover, the Court held that a defense based on the terms of a CBA is not enough to require preemption: “[A] defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated.” Id. at 399, 107 S.Ct. 2425. Attempting to clarify when claims are preempted under § 301, Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), held" }, { "docid": "1789287", "title": "", "text": "a defense to the allegations in a complaint. Caterpillar, 482 U.S. at 392, 107 S.Ct. at 2430. The “complete preemption” doctrine is the well-known exception to the well-pleaded complaint and conflict preemption rules, however. See Metropolitan Life, 481 U.S. at 63, 107 S.Ct. at 1546; Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430. Congress may so completely preempt a particular area that any complaint raising claims in that area is necessarily federal in character. Metropolitan Life, 481 U.S. at 63-64, 107 S.Ct. at 1546. To the extent that Congress has completely displaced a state law claim with federal law, a plaintiffs attempt to allege the state law claim properly is characterized from its inception as a complaint arising under the federal law. Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430; Douglas v. American Info. Technologies Corp., 877 F.2d 565, 569 (7th Cir.1989). Section 301 of the LMRA, which provides that suits for violation of contracts between an employer and a labor organization confer original jurisdiction in federal district courts, has complete preemption force. Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430. To ensure uniform interpretation of collective bargaining agreements, § 301 requires that federal rules of law be applied. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403, 108 S.Ct. 1877, 1880, 100 L.Ed.2d 410 (1988); Loewen Group Int’l, Inc. v. Haberichter, 65 F.3d 1417, 1421 (7th Cir.1995). Even if a plaintiff makes no mention of § 301 in a complaint, § 301 nevertheless may displace entirely a state cause of action, allowing removal by the defendant under the complete preemption exception to the well-pleaded complaint rule.. Section 301 preempts claims directly founded on or “substantially dependent on analysis of a collective-bargaining agreement.” Caterpillar, 482 U.S. at 394, 107 S.Ct. at 2431 (quoting International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 2167 n. 3, 95 L.Ed.2d 791 (1987)); Loewen, 65 F.3d at 1421. When the “heart of the [state law] complaint [is] a ... clause in the collective bargaining agreement, that complaint arises under federal law.”" }, { "docid": "8697073", "title": "", "text": "claims preempted by section 301 of the LMRA. Caterpillar Inc., 482 U.S. at 393, 107 S.Ct. 2425. Section 301 provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185(a). Section 301 “governs claims founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective bargaining agreement.’ ” Caterpillar Inc., 482 U.S. at 394, 107 S.Ct. 2425 (quoting Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987), and citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)); see also Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). In Avco v. Aero Lodge No. 735, International Association of Machinists & Aerospace Workers, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), the plaintiff filed suit in state court alleging that it had a valid contract with the union and seeking to enjoin the union from violating the agreement through its participation in, and sanction of, work stoppages. More recently, the Court explained its approach in Avco to section 301 preemption: The Court of Appeals held ... and we affirmed ... that the petitioner’s action “arose under” § 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy only under state law. The necessary ground of decision was that the preemptive force of § 301 is so powerful as to displace entirely any state cause of action “for violation of contracts between an employer and a labor organization.” Any such suit is purely a creature of federal law, notwithstanding the fact" }, { "docid": "10621", "title": "", "text": "jurisdiction exists is determined by the “well-pleaded complaint rule,” which requires that a federal question be “presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425; see also Trans Penn, 50 F.3d at 228. Generally, the well-pleaded complaint rule “makes the plaintiff the master of the claim.” Id. at 392, 107 S.Ct. 2425; see also Trans Penn, 50 F.3d at 228 (same). The rule permits the plaintiff to “avoid federal jurisdiction by exclusive reliance on state law.” Id. at 392, 107 S.Ct. 2425. The well-pleaded complaint rule is not absolute, however, because under the appropriate circumstances “a defendant may be able to remove a case notwithstanding a complaint’s apparent grounding in state law.” Trans Penn, 50 F.3d at 228. The doctrine of complete preemption presents one such circumstance. Id.; see also Berda v. CBS, 881 F.2d 20, 22 fn. 1 (3d Cir.1989) (discussing how complete preemption operates to permit removal despite the fact that the claim was pled as a state claim because “the claim is actually considered to arise under the federal law that displaces the state law.”). Under the doctrine of complete preemption, the preemptive force of federal law is “so powerful as to displace entirely any state cause of action.” Franchise Tax Bd. v. Construction Laborers Vacation Trust for Southern Cal, 463 U.S. 1, 23, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The Supreme Court has explained that complete preemption operates to “convert[ ] an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Metropolitan Life Insurance Co. v. Taylor, 481, U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Thus, when a federal statute is found to preempt an area of state law completely, “any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425; see also Franchise Tax Bd., 463 U.S. at 24, 103 S.Ct. 2841 (“[I]f a federal cause of action completely preempts a state cause of" }, { "docid": "3764672", "title": "", "text": "law, the Court must “examine the ‘well pleaded’ allegations of the complaint and ignore potential defenses.” Id. (citing Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908)). Under the “well-pleaded complaint rule,” federal question jurisdiction “exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The plaintiff is master of the claim and may rely exclusively on state law to avoid federal question jurisdiction. See id. If the plaintiffs claim does not rest on a federal question, a defendant generally may not remove a case to federal court based on a federal defense, even if the defense is preemption. See Beneficial Nat’l Bank v. Anderson, — U.S. -, -, 123 S.Ct. 2058, 2062, 156 L.Ed.2d 1; Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). A corollary to the well-pleaded complaint rule, however, provides for removal based on .complete federal preemption. Under this principle, the preemptive force of a statute can be so “extraordinary” that it “converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). “When the federal statute completely preempts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.” Beneficial National Bank v. Anderson, — U.S.-,-, 123 S.Ct. 2058, 2062, 156 L.Ed.2d 1. Under the complete preemption corollary, the Court properly exercises jurisdiction over plaintiffs claim. Section 301 of the LMRA not only preempts state law but also authorizes removal of claims that purported to seek relief only under state law. See Beneficial National Bank v. Anderson, — U.S. -, -, 123 S.Ct. 2058, 2062, 156 L.Ed.2d 1, (citing Avco Corp. v. Aero" } ]

[ { "docid": "6420077", "title": "", "text": "same contractual terms. Nonetheless, the court believes that the strictures of Rule 8(c) — assuming it applies to the contractual defense now raised by Niro — should be relaxed in this instance. In making this determination, the court has examined “the totality of the circumstances” and has made “a practical, commonsense assessment about whether Rule 8(c)’s core purpose — to act as a safeguard against surprise and unfair prejudice — has been vindicated.” Williams v. Ashland Eng’g Co., 45 F.3d 588, 593 (1st Cir.1995), reversed on other grounds sub nom. Carpenters Local Union No. 26 v. U.S. Fidelity & Guar. Co., 215 F.3d 136 (1st Cir. 2000). For one thing, no prejudice has resulted from its absence in the pleadings and fairness dictates that waiver ought not be imposed. See Conjugal P’ship v. Conjugal P’ship, 22 F.3d 391, 401 (1st Cir.1994) (where plaintiff understood that subject of defense would be an issue, it was not prejudiced by technical violation of Rule 8(c)). Unlike the cases upon which Plaintiffs rely, the contractual issue has been raised well before trial. Compare, e.g., Knapp, 15 F.3d at 1226-27. Also, the clause, if not its applicability, has been well known to Plaintiffs at least since the first deposition undertaken by the parties. Finally, as Plaintiffs themselves assert, the very existence of a contract is at issue and, as will be described, ought to be submitted to a jury. 2. Jury Issue In Massachusetts, ordinarily the question of whether a contract has been made is one of fact and if the evidence does not consist only of writings or is uncontradicted, the question is for the jury. Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 724 N.E.2d 699, 703 (2000) (citations omitted). See also David J. Tierney, Jr., Inc. v. T. Wellington Carpets, Inc., 8 Mass.App.Ct. 237, 392 N.E.2d 1066 (1979). Here, interestingly enough, the necessity to submit the contractual question to a jury, at Plaintiffs’ request, arises out of their own failure. They have never quite identified the written contract upon which Count III of their complaint is based. Indeed, at oral" } ]

[ { "docid": "20524835", "title": "", "text": "organization recognized by state and federal governments. D. 150 at 19; D. 172 ¶2. Partners also asserts that Dr. Shervin’s claims “directly concern her performance as a medical resident and fellow at several hospitals within the Partners system.” Id.; D. 149 ¶ 6. Given that Dr. Shervin has not disputed the relevant facts and has not argued in her opposition that § 85K does not apply, the Court finds that Partners falls under the charitable immunity cap for tort damages for the tortious interference claim as articulated in Mass. Gen. L. c. 231, § 85K. See Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223, 240, 786 N.E.2d 824 (2003) (affirming application of the statutory cap for a hospital when it was “undisputed that the defendant is a charitable corporation and that it was acting in the performance of its charitable purposes when the harm occurred”). Accordingly, the Court DENIES Drs. Rubash and Herndon’s motions for summary judgment as to the tortious interference claims and DENIES IN PART Partners’ insofar as the Court finds that Partners is entitled to charitable immunity- VI. Conclusion For the reasons discussed above, the Court DENIES IN PART Dr. Rubash’s motion, D. 144, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct that occurred prior to June 5, 2008 for Dr. Rubash’s liability; DENIES IN PART Dr. Herndon’s motion, D. 145, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct that occurred prior to June 5, 2008 for Dr. Herndon’s liability; DENIES IN PART Harvard’s motion, D. 148, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct that occurred prior to December 30, 2008 for Harvard’s liability; and DENIES IN PART Partners’ motion, D. 149, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct that occurred prior to June 5, 2008 for Partners’ liability and Partners is entitled to qualified immunity for the tortious interference claim. The Defendants’ motion to strike, D. 236, is DENIED. The Defendants’ motion for additional" }, { "docid": "20524801", "title": "", "text": "D. 229 ¶ 27 (undisputed fact that in March 2007, Dr. Shervin met with Dr. Rubash to express her concerns that Dr. Herndon’s decision to place her on probation was fueled by gender discrimination). That is, unlike the paradigm in which plaintiff suffers a number of indignities, the discriminatory animus of which is not clear until a series of such events continue over time or culminate in a discriminatory or retaliatory act for which the plaintiff then seeks relief, the opposite is true here. It is undisputed that Dr. Shervin complained about the probation (and the failure to reverse the decision or not allow its extension as discrimination) in 2007 and understood by June 6, 2007 that the Executive Committee would not provide her the relief she sought. This is not a circumstance which, by virtue of the continuing violation doctrine, “victims of discrimination [are not penalized] for reporting misconduct as it occurs and attempting to work with their employers to remedy the situation.” Tuli, 656 F.3d at 41 (comparing the “Massachusetts’ parallel analysis” under Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 541, 750 N.E.2d 928 (2001)). Nor is this case the paradigm in Tuli where “[although in 2005 and 2006, prior to the 300-day window, Tuli was subject to ‘pinpricks,’ ... [her supervisor’s] presentation to the [credentials] 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. The Court agrees with Dr. Shervin that Tuli is instructive, but it is instructive and distinguishable where she did not suffer “pinpricks,” but a discrete punch in the form of the probation that, upon her contemporaneous complaints about it as gender bias, did not lead to the relief she sought, as in Miller, 296 F.3d at 22. For all of these reasons, the Court finds that Dr. Shervin’s claims do not fall under Title VII’s continuing violation exception. 2. Continuing Violation Doctrine Under c. 151B Similar to Title VII, Massachusetts law provides that “the 300 day requirement shall not be" }, { "docid": "20524831", "title": "", "text": "at the beginning of her third year of residency, Dr. Burke suggested to Dr. Rubash that Dr. Shervin be brought onto the MGH and Newton-Wellesley staffs as an attending physician, employed full-time by MGPO. D. 217 ¶ 109-110, 112, 117. The parties do not dispute that Dr. Rubash met with Dr. Shervin in November 2005 to discuss Dr. Shervin’s potential post-fellowship employment at MGH and Newton-Wellesley. Where the parties disagree, however, is as to the nature of the conversation&emdash;while Dr. Rubash claims that he never offered Dr. Shervin employment, Dr. Shervin has presented evidence that Dr. Rubash orally assured Dr. Burke of a “firm job offer.” D. 217 ¶ 115; D. 229 ¶ 157 (citing D. 157-9 at 47-48). Further, to the extent Dr. Rubash argues “he has definitely indicated that he has taken no steps to interfere with employment opportunities at [Newton-Wellesley] ...” and that others have corroborated such, D. 144-1 at 20, there is evidence in the record that Dr. Rubash told Dr. Shervin’s recommenders that no open positions were available. Assuming the evidence at trial bears out Dr. Sher-vin’s contentions about a staff position at Newton-Wellesley, a jury could reasonably find that Dr. Rubash tortiously interfered with that opportunity. 2. The Tortious Interference Claim Against Dr. Herndon Survives Dr. Herndon first argues that because Dr. Shervin’s intentional interference claim “turns upon the premise that [the] initial probation decision — an event that occurred on February 2, 2007 — impacted her present and potential future employment” and that because she did not file her suit until April 9, 2010, the three-year statute of limitations on intentional interference claims has run pursuant to Mass. Gen. L. c. 260, § 2A. D. 152 at 19. Dr. Herndon further argues that Dr. Shervin cannot establish that he “knowingly induced HCORP to break its contractual relationship with her.” Id. Dr. Herndon further contends that he “has never communicated with Dr. Shervin’s prospective employers and she did not have a business relationship inuring to her economic benefit with which he interfered.” D. 152 at 20. Dr. Shervin does not specifically address any of" }, { "docid": "20524830", "title": "", "text": "or contemplated contract of economic benefit; (2) the defendant’s knowledge of such relationship; (3) the defendant’s interference with it through improper motive or means; and (4) [Dr. Shervin’s] loss of advantage directly resulting from the defendant’s conduct.” Am. Private Line Servs., Inc. v. E. Microwave, Inc., 980 F.2d 33, 36 (1st Cir.1992) (citing United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 551 N.E.2d 20 (1990)). Dr. Rubash argues that he could not interfere with any business relationship in regard to Dr. Shervin’s purported position with MGH because “she never had a contract with this institution or its professional organization for an attending position.” D 144-1 at 20. While Dr. Sher-vin’s opposition does not address these arguments (she argues only that “Dr. Ru-bash surely interfered with Dr. Shervin’s ability to be hired at the Newton-Welles-ley”), D. 231 at 78, the Court finds that the record provides sufficient admissible evidence such that a jury could find that there was at least a contemplated contract of future employment with MGH/Newton-Wellesley. As discussed above, Dr. Sher-vin asserts that at the beginning of her third year of residency, Dr. Burke suggested to Dr. Rubash that Dr. Shervin be brought onto the MGH and Newton-Wellesley staffs as an attending physician, employed full-time by MGPO. D. 217 ¶ 109-110, 112, 117. The parties do not dispute that Dr. Rubash met with Dr. Shervin in November 2005 to discuss Dr. Shervin’s potential post-fellowship employment at MGH and Newton-Wellesley. Where the parties disagree, however, is as to the nature of the conversation&emdash;while Dr. Rubash claims that he never offered Dr. Shervin employment, Dr. Shervin has presented evidence that Dr. Rubash orally assured Dr. Burke of a “firm job offer.” D. 217 ¶ 115; D. 229 ¶ 157 (citing D. 157-9 at 47-48). Further, to the extent Dr. Rubash argues “he has definitely indicated that he has taken no steps to interfere with employment opportunities at [Newton-Wellesley] ...” and that others have corroborated such, D. 144-1 at 20, there is evidence in the record that Dr. Rubash told Dr. Shervin’s recommenders that no open positions were available. Assuming the" }, { "docid": "20524828", "title": "", "text": "University takes institutional responsibility”). Given facts such as these, a jury could determine that Harvard’s control over the doctors’ everyday functions was pervasive enough such that Harvard should also be considered their employer, in addition to Partners. If a jury finds that the faculty members were employed by Harvard and acting under the scope of that employment, then it will be necessary to determine whether Harvard was Dr. Shervin’s employer, as only a plaintiffs employer may be held liable for discrimination and retaliation under both Title VII and c. 151B. Likewise, the Court cannot say on this record that Harvard was not Dr. Shervin’s employer. On this point, the Court notes that Dr. Shervin has set forth evidence that a resident may be subject to adverse action that could lead to termination from HCORP if she violates Harvard Medical School bylaws, policies or procedures. D. 220-7 at 2. A jury could well find that this type of disciplinary policy could affect the day-today practices of a resident. The Court recognizes the abundance of evidence Harvard has presented that could very well lead a jury to find that Harvard did not control any of the day-to-day ac tions of any of the doctors in this case. However, given that “[w]hether joint employer status exists is essentially a factual question,” Rivera-Vega, 70 F.3d at 163, the Court finds that at the least, Dr. Ru-bash’s 2009 actions, if attributable to Harvard, regarding the purported Newton-Wellesley job offer could form a timely basis for liability against Harvard, taking into account that Dr. Shervin must show that Harvard engaged in discriminatory or retaliatory conduct after December 30, 2008. E. The Court Denies the Defendants’ Motions for Summary Judgment as to the Tortious Interference Claims 1. As to Dr. Rubash, There are Material Factual Disputes as to the Existence of a Contemplated Contract Dr. Rubash argues that Dr. Sher-vin has not presented any evidence that he tortiously interfered with an advantageous business relationship or contemplated contract. D. 144-1 at 19. To show tortious interference with advantageous business relations, Dr. Shervin must prove: “(1) a business relationship" }, { "docid": "20524815", "title": "", "text": "has at least provided admissible evidence suggesting that Dr. Rubash may have foreclosed an employment opportunity at Newton-Wellesley and MGH in the spring of 2009—citing, in support of her argument that Dr. Rubash withdrew her job offer— evidence that Dr. Rubash told a recom-mender that no staff positions were available. D. 227-14 at 2. Dr. Rubash also argues that there is no evidence “to substantiate that [Dr. Sher-vin’s] status as a woman had any bearing on Dr. Rubash’s actions in the aftermath of the probation.” D. 144-1 at 17. However, the Court cannot conclude on the record that a reasonable jury could not surmise from the sequence of the events above that Dr. Rubash had a discriminatory animus, where Dr. Shervin contends that at least a contemplated offer of employment was later made not available to her. ii. Retaliation To prove prima facie retaliation, Dr. Shervin must show that she “engaged in protected conduct,” “suffered an adverse employment action” and that the “adverse action was causally connected to the protected activity.” Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir.2009) (citations and quotations omitted); Mole v. University of Massachusetts, 442 Mass. 582, 591-92, 814 N.E.2d 329 (2004). To show participation in a protected activity, Dr. Shervin need not prove that discrimination actually occurred, id. (citations and quotations omitted), but must show that she “reasonably and in good faith believed that the [defendant] was engaged in wrongful discrimination, that she acted reasonably in response to her belief, and that the [defendant’s] desire to retaliate against her was a determinative factor in its decision to [engage in adverse action].” Tate, 419 Mass. at 364, 645 N.E.2d 1159. Dr. Rubash argues that Dr. Shervin has failed to present evidence that he retaliated against her because she cannot prove that any adverse action taken against her was causally connected to any protected conduct. D. 144-1 at 18. The parties do not dispute that Dr. Shervin engaged in a protected activity in disputing her probation and a jury could find that Dr. Rubash’s alleged role at least in foreclosing a staff position at" }, { "docid": "20524816", "title": "", "text": "Coll., 557 F.3d 22, 32 (1st Cir.2009) (citations and quotations omitted); Mole v. University of Massachusetts, 442 Mass. 582, 591-92, 814 N.E.2d 329 (2004). To show participation in a protected activity, Dr. Shervin need not prove that discrimination actually occurred, id. (citations and quotations omitted), but must show that she “reasonably and in good faith believed that the [defendant] was engaged in wrongful discrimination, that she acted reasonably in response to her belief, and that the [defendant’s] desire to retaliate against her was a determinative factor in its decision to [engage in adverse action].” Tate, 419 Mass. at 364, 645 N.E.2d 1159. Dr. Rubash argues that Dr. Shervin has failed to present evidence that he retaliated against her because she cannot prove that any adverse action taken against her was causally connected to any protected conduct. D. 144-1 at 18. The parties do not dispute that Dr. Shervin engaged in a protected activity in disputing her probation and a jury could find that Dr. Rubash’s alleged role at least in foreclosing a staff position at Newton Wellesley and MGH in 2009 was causally connected to her protected conduct. Hotly disputed in this case is whether it was ever suggested that Dr. Shervin would be given a staff position at Newton-Wellesley. Dr. Shervin contends that both she and Dr. Burke were under the impression that Dr. Shervin had been offered a post-fellowship staff position. D. 229 ¶ 157 (citing D. 157-9 at 47-48). A jury could find that if any such job offer did exist, Dr. Rubash ensured that the purported opportunity she had to work at Newton-Welles-ley was not available because Dr. Shervin chose to pursue her claims and make allegations of discrimination against various people, including him. 2. Claims Against Dr. Herndon Dr. Herndon likewise argues that there is “no factual basis for any claim that Dr. Herndon engaged in discriminatory or retaliatory conduct after June 5, 2008.” D. 152 at 16. i. Discrimination A jury could find that Dr. Hern-don’s alleged post-June 5, 2008 efforts to have the Grievance Committee affirm an allegedly improper disciplinary action against Dr." }, { "docid": "20524841", "title": "", "text": "Clifton, 445 Mass. at 613, 839 N.E.2d 314. . Dr. Shervin also argues that equitable principles militate in favor of tolling the statute of limitations on the c. 151B claims because a jury could find that the Defendants engaged in discriminatoiy and retaliatory behavior to \"try and wait out the clock.” D. 231 at 71. Equitable tolling, however, is applied \"sparingly in employment discrimination cases” and is used \"[w]here an employer affirmatively misleads an employee, or encourages or cajoles her into inaction.” Cole v. Mount Ida Coll., 71 Mass.App.Ct. 1121, 2008 WL 1849776 (2008) (citations and quotations omitted). The Supreme Judicial Court has further held that equitable tolling applies only when \"the prospective plaintiff did not have, and could not have had with due diligence, the information essential to bringing suit,” Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 631, 682 N.E.2d 624 (1997). As discussed throughout this decision, the Executive Committee informed Dr. Shervin shortly after she asked for review that it was affirming Dr. Herndon’s probation even though Dr. Shervin expressed from the beginning that the probation was a result of gender bias. See D. 229 ¶¶ 53, 56. A couple of weeks later, in fact, her probation was extended. D. 229 ¶ 56. . To extent that Dr. Rubash challenges the aiding and abetting claim, Dr. Shervin’s claims that Dr. Rubash’s failure to act on Dr. Herndon's actions also support this claim. . Dr. Shervin also offers Dr. Burke’s deposition testimony, where he stated that Dr. Hor-nicek told him that Dr. Herndon told Dr. Hornicek that he extended probation because Dr. Shervin challenged his decision to place her on probation. D. 217 ¶ 266 (citing D. 219-20 at 35). The cited deposition testimony does not indicate when this conversation took place, and Dr. Shervin does not, in any event, demonstrate to the Court why this statement would not be considered inadmissible hearsay. . Harvard further argues that Dr. Shervin cannot show that it aided and abetted any discriminatory or retaliatory conduct pursuant to c. 15IB, § 4(5) because Harvard had no intent to discriminate or retaliate" }, { "docid": "20524836", "title": "", "text": "that Partners is entitled to charitable immunity- VI. Conclusion For the reasons discussed above, the Court DENIES IN PART Dr. Rubash’s motion, D. 144, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct that occurred prior to June 5, 2008 for Dr. Rubash’s liability; DENIES IN PART Dr. Herndon’s motion, D. 145, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct that occurred prior to June 5, 2008 for Dr. Herndon’s liability; DENIES IN PART Harvard’s motion, D. 148, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct that occurred prior to December 30, 2008 for Harvard’s liability; and DENIES IN PART Partners’ motion, D. 149, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct that occurred prior to June 5, 2008 for Partners’ liability and Partners is entitled to qualified immunity for the tortious interference claim. The Defendants’ motion to strike, D. 236, is DENIED. The Defendants’ motion for additional time to respond to Dr. Sher-vin’s opposition papers, D. 237 at 9, is also DENIED as moot. Dr. Shervin’s motion for leave to file a surreply to the Defendants’ reply briefs, D. 263, which the Court considered in resolving the instant motions, is ALLOWED nunc pro tunc. So Ordered. . The Court has since dismissed Count 7. D. 40 at 2. Partners has also represented to the Court that Dr. Shervin has agreed to dismiss Count 6. D. 149 at 1. . Partners and MGPO filed a joint motion for summary judgment. See D. 149. . Dr. Shervin has presented an affidavit from Dr. Burke stating that he was very impressed with Dr. Shervin, whom he described as a \"rising star.” D, 221-8 at 2. . It is not entirely clear from the record who, if anyone, organized the \"walkout.\" There is at least some suggestion that this action may have been a response to Dr. Shervin’s lack of courtesy to fellow residents during their respective thesis presentations. D. 172 ¶ 89; Deposition of Dr." }, { "docid": "20524814", "title": "", "text": "prove gender discrimination Dr. Shervin must show that “she is a member of a protected group who has been denied an employment opportunity for which she was otherwise qualified.” Dichner, 141 F.3d at 29-30. “Such a showing gives rise to an inference that the employer discriminated due to plaintiffs [protected status] and places upon the employer the burden of articulating a legitimate, nondiscriminatory reason for the adverse employment decision.” Id.; see also Tate v. Dep’t of Mental Health, 419 Mass. 356, 361, 645 N.E.2d 1159 (1995) (applying same burden-shifting standards for c. 151B discrimination claim). “This entails only a burden of production, not a burden of persuasion; the task of proving discrimination remains the plaintiff’s at all times.” Dichner, 141 F.3d at 30. If the Defendants meet such burden, Dr. Shervin must then prove that the Defendants’ “explanation is a pretext for unlawful discrimination.” Id. Dr. Rubash argues that Dr. Shervin cannot make a prima facie showing that he engaged in gender discrimination. D. 144-1 at 16-17. The Court disagrees. As discussed above, Dr. Shervin has at least provided admissible evidence suggesting that Dr. Rubash may have foreclosed an employment opportunity at Newton-Wellesley and MGH in the spring of 2009—citing, in support of her argument that Dr. Rubash withdrew her job offer— evidence that Dr. Rubash told a recom-mender that no staff positions were available. D. 227-14 at 2. Dr. Rubash also argues that there is no evidence “to substantiate that [Dr. Sher-vin’s] status as a woman had any bearing on Dr. Rubash’s actions in the aftermath of the probation.” D. 144-1 at 17. However, the Court cannot conclude on the record that a reasonable jury could not surmise from the sequence of the events above that Dr. Rubash had a discriminatory animus, where Dr. Shervin contends that at least a contemplated offer of employment was later made not available to her. ii. Retaliation To prove prima facie retaliation, Dr. Shervin must show that she “engaged in protected conduct,” “suffered an adverse employment action” and that the “adverse action was causally connected to the protected activity.” Fantini v. Salem State" }, { "docid": "20524768", "title": "", "text": "treated as having been filed on April 1, 2009 for statute of limitations purposes. D. 172 ¶ 109; D. 229 ¶ 109; Letter from Joan Stoddard to Ellen Zucker (D. 157-55). Dr. Shervin completed her fellowship in the summer of 2009. D. 172 ¶ 110; D. 229 ¶ 110 D. 157-1 at 46-47. On October 14, 2009, the Grievance Subcommittee recom mended that the Partners Education Committee affirm the initial probation decision by Dr. Herndon, the ratification of same by the Executive Committee and the extension of the initial probation for three months, Grievance Subcommittee Report (D. 157-48 at 4-11); the parties do not dispute that the Partners Education Committee adopted the subcommittee’s recommendation. D. 172 ¶ D. 229 ¶ 111. On October 26, 2009, Dr. Shervin filed a discrimination complaint with MCAD and the U.S. Equal Employment Opportunity Commission (“EEOC”) against Partners, Harvard, Dr. Herndon and Dr. Rubash. D. 172 ¶ 113; D. 229 ¶ 113; MCAD Complaint (D. 157-56). Dr. Shervin filed her complaint in this Court on April 9, 2010. D. 1. D. Post-Fellowship Employment (2009-2010) The parties do not dispute that in 2005, while Dr. Shervin was in the third year of her residency, she had discussions with Drs. Burke, Rubash and others concerning the possibility of a post-fellowship staff position at MGH, which would include privileges at Newton-Wellesley Hospital (“Newton-Wellesley”). D. 172 ¶¶ 119-120, 124; D. 229 ¶¶ 119-120,124; D. 157-1 at 4; D. 157-5 at 12. Upon Dr. Burke’s suggestion, Dr. Shervin met with Dr. Rubash on November 30, 2005. D. 157-12; see also D. 172 ¶¶ 132-133; D. 229 ¶¶ 132-133. The parties do not dispute that Dr. Ru-bash recommended that Dr. Shervin meet with Dr. Andrew Freiberg (“Dr. Frei-berg”), MGH’s Chief of Arthroplasty service, to discuss fellowships. D. 172 ¶ 136; D. 229 ¶ 136; D. 157-1 at 14-15. Dr. Rubash also explained in the meeting the differences between academia and private practice. D. 172 ¶ 138; D. 229 ¶ 138; D. 157-5 at 13-14. Following the meeting, Dr. Rubash sent Dr. Burke an email stating that he was “very optimistic that" }, { "docid": "20524812", "title": "", "text": "the parties do not dispute, provides that “in a dispute between Dr. Nina Shervin and Partners Healthcare System, Inc., its representatives, agents, successors, assigns, affiliates, parents, officers, partners, employees and insurers ... the parties entered into a tolling agreement to attempt to resolve the disputes between them....” D. 153-46 at 2. Therefore, consistent with the Court’s rulings above, in determining any liability on the part of Partners, MGPO, Dr. Rubash or Dr. Hern-don, the jury will be permitted to consider events occurring after June 5, 2008, which is 300 days before April 1, 2009. The Court cannot find, however, that Harvard was party to the Tolling Agreement. While Dr. Shervin argues that Harvard was involved in “on-going efforts to resolve this matter” in the spring of 2009, D. 217 ¶ 415, by the face of the agreement itself, Harvard is not a party. While, as Dr. Shervin argues, the agreement binds Partners’ “affiliates,” Harvard is correct in asserting that it cannot be bound by a tolling agreement that it did not give Partners the legal authority to which to bind it. See Williams v. Ely, 423 Mass. 467, 479-80, 668 N.E.2d 799 (1996). In an affidavit, Joan Stoddard, counsel for Partners, stated that she signed the Tolling Agreement on behalf of Partners and that Harvard did not authorize her to sign the Tolling Agreement on its behalf. D. 153-47 ¶¶ 8, 10-11. She further attests that she did not intend to bind Harvard and did not tell Dr. Shervin’s counsel or otherwise suggest to her that she had the authority to bind Harvard. Id. ¶¶ 12-13. Dr. Shervin has offered no specific, admissible evidence on this record supporting the contention that Harvard gave Partners the authority to bind it to the Tolling Agreement. Therefore, the controlling date for statute of limitations purposes for claims against Harvard is December 30, 2008&emdash;300 days before Dr. Shervin filed her MCAD complaint on October 26, 2009. D. 1. C. The Court Denies Summary Judgment as to the Timely Gender Discrimination and Retaliation Claims 1. Claims Against Dr. Rubash i. Discrimination As noted above, to" }, { "docid": "20524782", "title": "", "text": "that because of the Tolling Agreement, all of Dr. Shervin’s discrimination and retaliation claims that occurred prior to June 5, 2008-300 days before April 1, 2009-are time-barred. D. 144-1 at 10; D. 152 at 9; D. 150 at 2. They further argue that there is insufficient timely evidence that they engaged in gender discrimination or retaliation, D. 144-1 at 16-19; D. 152 at 10; D. 150 at 8, and that Dr. Shervin has failed to present sufficient evidence of a tortious interference with a contract or advantageous business relationship. D. 144-1 at 19; D. 152 at 19; D. 150 at 18. Partners also argues that it qualifies for charitable immunity for the interference claim pursuant to Mass. Gen. L. c. 231, § 85K. D. 150 at 19. Harvard asserts that it was not party to the Tolling Agreement, and that therefore, the statute of limitations date for claims against Harvard is December 30, 2008&emdash; 300 days prior to the filing of Dr. Shervin’s MCAD complaint on October 26, 2009. D. 151 at 28. Like the 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" }, { "docid": "20524770", "title": "", "text": "we can do something for [Dr. Shervin] here.” D. 172 ¶ 150; D. 229 ¶ 150; November 30, 2005 email from Rubash to Dr. Burke (D. 157-64). In December 2005, Dr. Shervin met with Dr. Freiberg and, according to Dr. Sher-vin, they discussed his recommendations for fellowships and “coming on staff’ at MGH and Newton-Wellesley. D. 172 ¶ 155; D. 229 ¶ 155; D. 157-1 at 12-13. Although the parties do not dispute that there were conversations in and around 2005 about the possibility of a post-fellowship staff position at MGH for Dr. Shervin, the Defendants deny that any agreement or employment offer regarding the same was made. See D. 229 ¶¶ 143-147. Dr. Shervin contends that the Defendants later interfered with her purported hiring at Newton-Wellesley and MGH in the spring of 2009. Dr. Shervin relies upon the fact that Dr. Rubash told a recommender that no staff positions were available, June 14, 2009 email from Dr. Rubash to Dr. Sunder (D. 227-14 at 2), which she contends was pretext for a retaliatory withdrawal of her contemplated employment offer. D. 229 ¶ 152. E. Post-Complaint Employment Prospects Dr. Shervin also contends that retaliation for her earlier complaints of gender discrimination continued after she initiated this lawsuit. According to Dr. Shervin, she received an offer letter in or around the Spring 2012 from Cooley Dickinson Hospital (“Cooley”); see Draft Recruitment Letter (D. 228-2); D. 157-2 at 39. Affidavit of Dr. Henry Drinker (D. 227-24 at 3). At the time, Cooley was in negotiations with MGH about an affiliation. There is evidence in the affidavit of Dr. Henry Drinker, Director of Joints Replacement Services at Cooley who recruit ed Dr. Shervin, that after the hospital had tendered her a contract and after contact between Cooley management and MGH management, the offer was withdrawn in or around late 2012. Id. at 3-4. Dr. Shervin also alleges that around June 2012, Dr. Mark Gebhardt, chief of the orthopaedic service at Beth Israel Deaconess Medical Center-Milton Hospital (“Milton”), not a party to this lawsuit, contributed to her being deprived of the opportunity to join" }, { "docid": "20524844", "title": "", "text": "employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action”). The Court makes its ruling here on a fuller record and under the legal standards articulated above. .The Court takes note of Harvard's reliance on Loewen v. Grand Rapids Med. Educ. Partners, No. 1:10-CV-1284, 2012 WL 1190145 (W.D.Mich. Apr. 9, 2012) (holding that the medical school was not the medical resident's joint employer for Title VII and state law discrimination claim purposes) for the proposition that a medical resident is not employed by a medical school for Title VII purposes. D. 151 at 14. Still, based on the standards articulated by the First Circuit and Massachusetts courts discussed above, the Court finds that Loewen, while persuasive to some extent, is not controlling. . Dr. Rubash has argued that even if he or any of the Defendants had made an oral agreement promising Dr. Shervin a position with MGH, the statute of frauds prevents any such oral agreement from being enforced. D. 144-1 at 15. While the Supreme Judicial Court has held that the statute of frauds bars enforcement of any oral employment agreement “which by [its] terms cannot be performed within the year,” Boothby v. Texon, Inc., 414 Mass. 468, 479, 608 N.E.2d 1028 (1993), as discussed above, the Court finds that Dr. Shervin has set forth specific admissible facts for a claim of interference with at least a contemplated contract, not necessarily with an existing and enforceable contract. . To show an intentional interference with contractual relations, Dr. Shervin \"must prove that: (1) [she] had a contract with a third party; (2) the defendant knowingly induced the third party to break that contract; (3) the defendant’s interference, in addition to being intentional, was improper in motive or means; and (4) [she] was harmed by the defendant’s actions.” G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272, 571 N.E.2d 1363 (1991). . See D. 229 ¶¶ 2, 6; Affidavit of Joan" }, { "docid": "20524829", "title": "", "text": "has presented that could very well lead a jury to find that Harvard did not control any of the day-to-day ac tions of any of the doctors in this case. However, given that “[w]hether joint employer status exists is essentially a factual question,” Rivera-Vega, 70 F.3d at 163, the Court finds that at the least, Dr. Ru-bash’s 2009 actions, if attributable to Harvard, regarding the purported Newton-Wellesley job offer could form a timely basis for liability against Harvard, taking into account that Dr. Shervin must show that Harvard engaged in discriminatory or retaliatory conduct after December 30, 2008. E. The Court Denies the Defendants’ Motions for Summary Judgment as to the Tortious Interference Claims 1. As to Dr. Rubash, There are Material Factual Disputes as to the Existence of a Contemplated Contract Dr. Rubash argues that Dr. Sher-vin has not presented any evidence that he tortiously interfered with an advantageous business relationship or contemplated contract. D. 144-1 at 19. To show tortious interference with advantageous business relations, Dr. Shervin must prove: “(1) a business relationship or contemplated contract of economic benefit; (2) the defendant’s knowledge of such relationship; (3) the defendant’s interference with it through improper motive or means; and (4) [Dr. Shervin’s] loss of advantage directly resulting from the defendant’s conduct.” Am. Private Line Servs., Inc. v. E. Microwave, Inc., 980 F.2d 33, 36 (1st Cir.1992) (citing United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 551 N.E.2d 20 (1990)). Dr. Rubash argues that he could not interfere with any business relationship in regard to Dr. Shervin’s purported position with MGH because “she never had a contract with this institution or its professional organization for an attending position.” D 144-1 at 20. While Dr. Sher-vin’s opposition does not address these arguments (she argues only that “Dr. Ru-bash surely interfered with Dr. Shervin’s ability to be hired at the Newton-Welles-ley”), D. 231 at 78, the Court finds that the record provides sufficient admissible evidence such that a jury could find that there was at least a contemplated contract of future employment with MGH/Newton-Wellesley. As discussed above, Dr. Sher-vin asserts that" }, { "docid": "20524817", "title": "", "text": "Newton Wellesley and MGH in 2009 was causally connected to her protected conduct. Hotly disputed in this case is whether it was ever suggested that Dr. Shervin would be given a staff position at Newton-Wellesley. Dr. Shervin contends that both she and Dr. Burke were under the impression that Dr. Shervin had been offered a post-fellowship staff position. D. 229 ¶ 157 (citing D. 157-9 at 47-48). A jury could find that if any such job offer did exist, Dr. Rubash ensured that the purported opportunity she had to work at Newton-Welles-ley was not available because Dr. Shervin chose to pursue her claims and make allegations of discrimination against various people, including him. 2. Claims Against Dr. Herndon Dr. Herndon likewise argues that there is “no factual basis for any claim that Dr. Herndon engaged in discriminatory or retaliatory conduct after June 5, 2008.” D. 152 at 16. i. Discrimination A jury could find that Dr. Hern-don’s alleged post-June 5, 2008 efforts to have the Grievance Committee affirm an allegedly improper disciplinary action against Dr. Shervin reflected discriminatory animus and/or retaliation. For instance, Dr. Shervin has provided evidence that during the Grievance Committee’s 2009 hearing, Dr. Herndon stated that Dr. Shervin “didn’t do the right thing with the shoulder,” referring to the shoulder case, D. 220-1 at 120, even though the Executive Committee had been informed, by a letter to Dr. Kasser from the attending surgeon, that Dr. Shervin’s mistake did not rise “to the level of seriousness to which it seems to have risen.” D. 222-15. ii. Retaliation “Prohibited retaliatory actions are those that constitute a change in working conditions that ‘create a material disadvantage in the plaintiffs employment.’ ” Ritchie v. Dep’t of State Police, 60 Mass.App. Ct. 655, 665, 805 N.E.2d 54 (2004) (quoting Flanagan-Uusitalo v. D.T. Indus., Inc., 190 F.Supp.2d 105, 116 (D.Mass.2001)). As discussed above, Dr. Shervin has provided admissible evidence that Dr. Hern-don contributed to the allegedly faulty Grievance Committee investigation by failing to notify the Grievance Subcommittee at least as to the potentially overstated description of events surrounding the shoulder case. A jury" }, { "docid": "20524813", "title": "", "text": "authority to which to bind it. See Williams v. Ely, 423 Mass. 467, 479-80, 668 N.E.2d 799 (1996). In an affidavit, Joan Stoddard, counsel for Partners, stated that she signed the Tolling Agreement on behalf of Partners and that Harvard did not authorize her to sign the Tolling Agreement on its behalf. D. 153-47 ¶¶ 8, 10-11. She further attests that she did not intend to bind Harvard and did not tell Dr. Shervin’s counsel or otherwise suggest to her that she had the authority to bind Harvard. Id. ¶¶ 12-13. Dr. Shervin has offered no specific, admissible evidence on this record supporting the contention that Harvard gave Partners the authority to bind it to the Tolling Agreement. Therefore, the controlling date for statute of limitations purposes for claims against Harvard is December 30, 2008&emdash;300 days before Dr. Shervin filed her MCAD complaint on October 26, 2009. D. 1. C. The Court Denies Summary Judgment as to the Timely Gender Discrimination and Retaliation Claims 1. Claims Against Dr. Rubash i. Discrimination As noted above, to prove gender discrimination Dr. Shervin must show that “she is a member of a protected group who has been denied an employment opportunity for which she was otherwise qualified.” Dichner, 141 F.3d at 29-30. “Such a showing gives rise to an inference that the employer discriminated due to plaintiffs [protected status] and places upon the employer the burden of articulating a legitimate, nondiscriminatory reason for the adverse employment decision.” Id.; see also Tate v. Dep’t of Mental Health, 419 Mass. 356, 361, 645 N.E.2d 1159 (1995) (applying same burden-shifting standards for c. 151B discrimination claim). “This entails only a burden of production, not a burden of persuasion; the task of proving discrimination remains the plaintiff’s at all times.” Dichner, 141 F.3d at 30. If the Defendants meet such burden, Dr. Shervin must then prove that the Defendants’ “explanation is a pretext for unlawful discrimination.” Id. Dr. Rubash argues that Dr. Shervin cannot make a prima facie showing that he engaged in gender discrimination. D. 144-1 at 16-17. The Court disagrees. As discussed above, Dr. Shervin" }, { "docid": "20524769", "title": "", "text": "D. Post-Fellowship Employment (2009-2010) The parties do not dispute that in 2005, while Dr. Shervin was in the third year of her residency, she had discussions with Drs. Burke, Rubash and others concerning the possibility of a post-fellowship staff position at MGH, which would include privileges at Newton-Wellesley Hospital (“Newton-Wellesley”). D. 172 ¶¶ 119-120, 124; D. 229 ¶¶ 119-120,124; D. 157-1 at 4; D. 157-5 at 12. Upon Dr. Burke’s suggestion, Dr. Shervin met with Dr. Rubash on November 30, 2005. D. 157-12; see also D. 172 ¶¶ 132-133; D. 229 ¶¶ 132-133. The parties do not dispute that Dr. Ru-bash recommended that Dr. Shervin meet with Dr. Andrew Freiberg (“Dr. Frei-berg”), MGH’s Chief of Arthroplasty service, to discuss fellowships. D. 172 ¶ 136; D. 229 ¶ 136; D. 157-1 at 14-15. Dr. Rubash also explained in the meeting the differences between academia and private practice. D. 172 ¶ 138; D. 229 ¶ 138; D. 157-5 at 13-14. Following the meeting, Dr. Rubash sent Dr. Burke an email stating that he was “very optimistic that we can do something for [Dr. Shervin] here.” D. 172 ¶ 150; D. 229 ¶ 150; November 30, 2005 email from Rubash to Dr. Burke (D. 157-64). In December 2005, Dr. Shervin met with Dr. Freiberg and, according to Dr. Sher-vin, they discussed his recommendations for fellowships and “coming on staff’ at MGH and Newton-Wellesley. D. 172 ¶ 155; D. 229 ¶ 155; D. 157-1 at 12-13. Although the parties do not dispute that there were conversations in and around 2005 about the possibility of a post-fellowship staff position at MGH for Dr. Shervin, the Defendants deny that any agreement or employment offer regarding the same was made. See D. 229 ¶¶ 143-147. Dr. Shervin contends that the Defendants later interfered with her purported hiring at Newton-Wellesley and MGH in the spring of 2009. Dr. Shervin relies upon the fact that Dr. Rubash told a recommender that no staff positions were available, June 14, 2009 email from Dr. Rubash to Dr. Sunder (D. 227-14 at 2), which she contends was pretext for a retaliatory withdrawal" }, { "docid": "20524832", "title": "", "text": "evidence at trial bears out Dr. Sher-vin’s contentions about a staff position at Newton-Wellesley, a jury could reasonably find that Dr. Rubash tortiously interfered with that opportunity. 2. The Tortious Interference Claim Against Dr. Herndon Survives Dr. Herndon first argues that because Dr. Shervin’s intentional interference claim “turns upon the premise that [the] initial probation decision — an event that occurred on February 2, 2007 — impacted her present and potential future employment” and that because she did not file her suit until April 9, 2010, the three-year statute of limitations on intentional interference claims has run pursuant to Mass. Gen. L. c. 260, § 2A. D. 152 at 19. Dr. Herndon further argues that Dr. Shervin cannot establish that he “knowingly induced HCORP to break its contractual relationship with her.” Id. Dr. Herndon further contends that he “has never communicated with Dr. Shervin’s prospective employers and she did not have a business relationship inuring to her economic benefit with which he interfered.” D. 152 at 20. Dr. Shervin does not specifically address any of Dr. Herndon’s arguments in her opposition. See D. 231 at 77-7$. Even if this claim is time-barred as to the 2007 probation decision, the Court finds that a jury could conclude that Dr. Hern-don tortiously interfered with Dr. Sher-vin’s relationship with Partners as well as her HCORP contract by continuing, for discriminatory reasons, to seek to have the initial 2007 probation affirmed. 3. The Tortious Interference Claim Against Partners Survives, But Charitable Immunity Applies As discussed above, the tortious interference claims against Drs. Herndon and Rubash shall proceed to trial. Accordingly, the tortious interference claim against Partners (Count 19) shall also proceed to trial. The Court finds, however, that Partners qualifies for charitable immunity under Mass. Gen. L. c. 231, § 85K as to this claim. D. 150 at 19. The statute provides, in relevant part: It shall not constitute a defense to any cause of action based on tort brought against a corporation, trustees of a trust, or members of an association that said corporation, trust, or association is or at the time the" } ]

[ { "docid": "15988510", "title": "", "text": "BOWMAN, Circuit Judge. Southern Technical College (STC) filed a voluntary petition for bankruptcy reorganization on April 28, 1992. These appeals arise out of adversary proceedings conducted in the context of the Chapter 11 bankruptcy proceedings. STC leased nonresidential real property from both Graham Properties Partnership and James W. Hood. STC did not make its February 1992 rent payments on these properties until March 1992. STC claims that it is entitled to recover the $16,-900.67 late-rent payment to Graham and the $19,530 late-rent payment to Hood as avoidable preferential transfers under 11 U.S.C. § 547(b) (1994). The Bankruptcy Court disagreed, concluding that while the transfers from STC to Graham and Hood were preferential transfers, STC could not recover them because they fell within the subsequent-advance-of-new-value exception, 11 U.S.C. § 547(c)(4). The District Court affirmed the grants of summary judgment by the Bankruptcy Court, and STC timely appeals. We have jurisdiction over these appeals pursuant to 28 U.S.C. § 158(d) (1994), and we affirm the judgments of the District Court. In August 1987, STC began leasing property from Graham in Monroe, Louisiana. STC paid a security deposit of $11,846. After April 1989, the monthly lease payments were $16,900.67. STC consistently made its payments during the first week of each month until January 1992, when Graham received the January 1992 check on January 17, 1992. The February check, which is the subject of the litigation between STC and Graham, was dated February 28, 1992, and not received by Graham until March 2, 1992. STC failed to pay any rent for March or April 1992. In May 1987, STC began leasing property from Wally Caldwell in Jackson, Mississippi, for $19,530 per month. STC also paid a security deposit of $19,530. Caldwell later assigned the lease to Hood. STC typically made its monthly payments to Hood during the first week of each month. The February 1992 check, which is the subject of the litigation between STC and Hood, was not received by Hood until March 2, 1992. STC failed to pay any rent for March or April 1992. The Bankruptcy Court held that the two" } ]

[ { "docid": "9564332", "title": "", "text": "and recover under 11 U.S.C. § 547(b) and § 550(a) the $25,316.75 in prepetition lease payments paid to defendant Felco Commercial Services in the ninety-day period preceding their chapter 11 filing. In order to avoid the prepetition lease payments as preferences, the plaintiffs must show that (1) the payments benefit-ted the defendant; (2) that the payments were made on account of an antecedent debt; (3) while the plaintiffs were insolvent; (4) within 90 days before the filing of the plaintiffs’ chapter 11 petitions; and (5) which enabled the defendant to receive a larger share of the estate than if this case had been filed as a chapter 7 case and the payments had not been made. Luper v. Columbia Gas of Ohio, Inc. (In re Carled, Inc.), 91 F.3d 811, 813 (6th Cir.1996). The defendant does not dispute that these elements have been met. Accordingly, the Court determines that there are no genuine issues of material fact concerning the operation of 11 U.S.C. § 547(b). Notwithstanding the fact that the elements of a preference have been met, the plaintiffs may not avoid and recover the payments if one of the defenses found in 11 U.S.C. § 547(c) applies. Id. The defendant maintains that its provision of new value bars the plaintiffs’ recovery under § 547(c)(4). The defendant’s subsequent new value defense has two separate components. First, the defendant argues that its forbearance during the sixty-day period allowed under the parties’ agreed order constituted new value. For this proposi tion the defendant relies on Southern Technical College, Inc. v. Hood, 89 F.3d 1381 (8th Cir.1996). In Hood, the defendant provided the debtor with the leased property after the preferential transfer and before the filing of the bankruptcy petition. The debtor failed to pay for the use of these properties during this period. The Eighth Circuit held under these facts that the defendant had replenished the bankruptcy estate by giving the debtor rent-free use of the leased properties for two months. Id. at 1385. Accordingly, the debtor could not avoid the preferential transfer to the extent that this “new value” remained unpaid." }, { "docid": "7517628", "title": "", "text": "must receive “new value” defined by § 547(a)(2) as follows: (a) In this section— (2) “new value” means money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debt- or or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation. 11 U.S.C. § 547(a)(2). New value given after a preferential transfer helps the defendant only if it is not secured by an unavoidable security interest. 11 U.S.C. § 547(c)(4)(A). See In re Micro Innovations Corp., 185 F.3d at 334-35. This makes sense because the debtor is not enhanced if the new value given after the preferential transfer is subject to liens and would not balance the loss caused by the preferential transfer. Also, the new value must not have been paid for by the debtor with a transfer that cannot itself be avoided. 11 U.S.C. § 547(c)(4)(B). In other words, the new value must remain an enhancement of the debtor notwithstanding transfers (typically payments) to the creditor by the debtor after the new value was given. A payment by the debtor to the creditor after the creditor gave new value does not unravel the defense if the payment can itself be recovered as an avoidable transfer. (Docket Entry No. 1, Part 24, Memorandum at 12-13.) As the Bankruptcy Court noted, the policies behind § 547(c)(4) are to encourage the creditor to continue to do business with the troubled debtor and to insure that the creditor who contributes new value to the debtor in return for pre-petition payments is not later deemed to have depleted the bankruptcy estate to the disadvantage of other creditors. (Id.) The Bankruptcy Court did not accept the trustee’s position that the post-petition payments made by the debtor-in-possession to Proficient under the Critical Vendor Order were “otherwise unavoidable” transfers that could be used to offset the pre-petition “new value” given by Proficient. The Bankruptcy Court reasoned that the preference window of" }, { "docid": "201570", "title": "", "text": "section— (A) “value” means property, or satisfaction or securing of a present or antecedent debt of the debtor, but does not include an unperformed promise to furnish support to the debtor or to a relative of the debtor. (Emphasis supplied). In this case, Godsey asserts in his verified response to the Motion for Summary Judgment that he periodically made loans to the Debtor, and that the payment at issue constituted repayment of the loan. Accordingly, it appears that the Debtor may have received “value” in exchange for the payment in the form of the satisfaction or partial satisfaction of an antecedent debt owed to Godsey. Since an issue of fact exists, therefore, with respect to whether the Debtor received reasonably equivalent value, the Plaintiffs Motion for , Summary Judgment should be denied with respect to the fraudulent transfer action contained in the Complaint. Conclusion The Plaintiffs Motion for Summary Judgment should be granted with respect to Count I of the Complaint. Godsey acknowledged that all of the operating elements of § 547 were present in this case. The only issue, therefore, was whether the payment to Godsey was made in the ordinary course of the Debtor’s business, and therefore excepted from avoidance as a preferential transfer pursuant to § 547(c)(2) of the Bankruptcy Code. The Court concludes that the requirements for the defense set forth in § 547(c)(2) were not satisfied in this case, and that the payment was not made in the ordinary course of business within the meaning of the exception. Consequently, the payment should be avoided as a preferential transfer pursuant to § 547(b) of the Bankruptcy Code. The Plaintiffs Motion for Summary Judgment should be denied, however, with respect to Count II of the Complaint. An issue of fact exists with respect to whether the Debtor received reasonably equivalent value in exchange for the payment, and the Court therefore cannot conclude that the payment constituted a voidable fraudulent transfer under § 548(a)(1)(B) of the Bankruptcy Code. Accordingly: IT IS ORDERED that: 1. The Plaintiffs Motion for Summary Judgment is granted in part and denied in part" }, { "docid": "18550750", "title": "", "text": "MEMORANDUM OPINION GRANTING, IN PART, AND DENYING, IN PART, MOTION TO DISMISS COUNT 3 OF COMPLAINT TO AVOID AND RECOVER PREFERENTIAL TRANSFERS E. STEPHEN DERBY, Bankruptcy Judge. The Debtor, Daedalean, Inc., through the disbursing agent under its confirmed plan of liquidation, Paul D. Trinkoff, has filed a complaint that seeks in Count 3 to avoid and recover several payments made by the Debt- or to the Defendant Products Supports, Inc. as preferential transfers under 11 U.S.C. §§ 547(b) and 550(a). The Defendant does not deny that these transfers took place; instead, the Defendant asserts three affirmative defenses against the Debtor’s preferential transfer claims. Defendant first contends that the transfers at issue occurred during the military Operations Desert Shield and Desert Storm and, therefore, that the Defense Production Act of 1950 (“DPA”) and supplemental regulations required it to continue shipping its goods to the Debtor irrespective of payment. It argues that these exigent circumstances mitigate against a finding that any late payments were preferential transfers. Next, Defendant alleges that, pursuant to § 547(c)(2), these transfers were incurred in the ordinary course of business between it and the Debt- or, and that payments were made within the standard payment time of the industry during the Persian Gulf crisis. Finally, the Defendant contends that, even if these payments are avoidable preferential transfers, pursuant to 11 U.S.C. § 547(c)(4) any recovery must be offset and reduced by the amount of new value given by the Defendant to the Debtor. The Defendant has filed a motion to dismiss the Debtor’s § 547(b) claim on the grounds stated above. In support of its motion, the Defendant supplied the court with affidavits and exhibits. With its opposition to the motion, the Debtor filed its own exhibits. Because matters outside the pleadings have been presented, the court has treated the Defendant’s motion as one for summary judgment. Fed.R.Civ.Pro. 12(b), made applicable by Fed.R.Bankr.Pro. 7012(b). I. FACTS The Debtor, incorporated in 1972, was primarily a military contractor, researching and developing military technology. The Debtor was a participant in the United States Small Business Administration Section 8A Program. In 1984," }, { "docid": "15988521", "title": "", "text": "property leased from Hood. STC argues that it may recover a portion of the preferential transfer to Hood because the new value provided does not exceed the amount of the preferential payment plus the security deposit. STC, however, failed to make this argument to the Bankruptcy Court. Rather, STC made the all-or-nothing argument that the new value was secured by the security deposits and that the statute did not differentiate between secured and undersecured new value; thus, according to STC, the entire amount of any new value received was secured and the preferential transfers did not fall within the subsequent-advance exception. Memorandum Brief in Support of Response to Defendant’s Motion for Summary Judgment at 9-10, STC v. Hood (In re STC), No. 94-4063 (Bankr. E.D.Ark. March 8, 1995) (brief filed). The argument advanced by STC in this Court was raised for the first time on appeal to the District Court and is not properly before us. We therefore decline to consider it. See Abbott Bank-Thedford v. Hanna (In re Hanna ), 912 F.2d 945, 948 (8th Cir.1990). In sum, we hold that the Bankruptcy Court properly concluded as a matter of law that STC could not avoid the preferential transfers to Graham and Hood because the undisputed material facts established that the STC received unsecured new value for. which it had not paid. We therefore affirm the judgments of the District Court affirming the judgments of the Bankruptcy Court. . The Honorable Mary Davies Scott, United States Bankruptcy Judge for the Eastern District of Arkansas. . The Honorable Stephen M. Reasoner, Chief Judge, United States District Court for the Eastern District of Arkansas. . It is undisputed that the security deposits paid by STC constitute unavoidable security interests under § 547(c)(4)(A). . In the litigation with Graham in the Bankruptcy Court, STC raised the argument that the new value did not exceed the sum of the late rent and the security deposit during the proceedings on Graham's motion to amend or alter the judgment. Throughout those proceedings, a summary judgment motion was pending in the litigation with Hood. The Bankruptcy" }, { "docid": "15988513", "title": "", "text": "the grant of summary judgment. Id.; see also Fed.R.Civ.P. 56(c). STC argues that it received no new value within the meaning of § 547(c)(4) after its late-rent payments. The Bankruptcy Court held that STC’s continued use of the properties during March and April, without the payment of rent, constituted subsequent new value. Section 547, in pertinent part, provides as follows: (c) The trustee may not avoid under this section a transfer— (4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor— (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor.... The statute defines new value as “money or money’s worth in goods, services, or new credit____” 11 U.S.C. § 547(a)(2). Section 547(c)(4) thus modifies the general rule that preferential transfers may be recovered by creating an exception for situations in which a creditor provides new value after the preferential transfer is made but before the filing of the debtor’s bankruptcy petition. The giving of new value alone is not sufficient for this exception to apply. The debtor must not have paid for the new value by making “an otherwise unavoidable transfer to or for the benefit of the creditor.” Id. § 547(e)(4)(B). Additionally, the new value cannot be secured by “an otherwise unavoidable security interest.” Id. § 547(c)(4)(A). In this case, it is undisputed that STC has not paid for any new value that Graham and Hood have extended, but STC argues that its security deposits constitute an unavoidable security interest. Such an interest could make § 547(c)(4) inapplicable to all or part of the preferential transfers at issue. The first step in our inquiry, however, is to determine whether the rent-free use of the Graham and Hood properties constitutes new value. The purpose of § 547(c)(4) is “to encourage creditors to deal with troubled businesses in the hope of rehabilitation.” Kroh Bros. Dev. Co. v." }, { "docid": "1077372", "title": "", "text": "of goods cannot be used again to offset a different transfer dollar via § 547(c)(4). Two other courts have reached a similar conclusion, and several courts have as serted that § 547(c)(4)(B) does not require new value to remain unpaid. In summary, Garland highlights three basic principles underlying § 547(c)(4). First, § 547(c)(4)’s subsequent advance rule makes preferential transfers avoidable until offset by subsequent advances of new value. Second, Congress drafted § 547(c)(4) to retain the net result rule’s policy of encouraging creditors to continue doing business with troubled debtors by protecting transfers received by creditors from preference actions to the extent goods provided by such creditors replenish the estate during the preference period. Third, § 547(c)(4)(B) does not require new value to remain unpaid, but rather acts as a safeguard against double counting. Trustee cites a line of cases, beginning with Matter of Bishop, 17 B.R. 180 (1982), that allegedly stand for the proposition that § 547(c)(4)(B) requires new value to remain unpaid. In Bishop, the trustee tried to recover preferential loan payments made by the debtor to a creditor bank during the preference period: Payments Loans $18,418.50 (on prior note) $9,140.80 (note 1) $19,300.00 (note 2) $10,000.00 (note 3) $1,828.16 (on note 1) $19,800.00 (on note 2) See, 17 B.R. at 181. Bishop interpreted § 547(c)(4)(B) as requiring new value to remain unpaid. Id. at 183. To determine the amount of unpaid new value, the court offset the last two transfers of $1,828.16 and $19,800.00 against the loans, and concluded that the creditor had an unpaid new value defense of $16,812.64 against the first transfer of $18,418.50. Id. Additionally, the creditor sought summary judgment that the trustee was entitled to recover no more than $1,605.86, the net of preferential transfers made over all new loans made during the preference period. Id. The creditor argued that the judicial net result rule survived the enactment of § 547(c)(4) and continued to operate independently of the statutory defense. Id. Relying on the legislative history, the court appropriately held that “the net result rule has no application under § 547(c)(4) of the" }, { "docid": "10810116", "title": "", "text": "value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor ... Id. § 547(c)(4). Roth Staffing claimed that because it had provided subsequent new value to the Debtor in an amount ($100,-660.88) exceeding the preferential trans fers made ($81,997.57), FLT could not avoid these transfers. FLT responded by arguing that Roth Staffing’s new value defense had to be reduced by the post-petition payment of $72,412.71 that the Debtor had made pursuant to the Wage Order. FLT argued that this “otherwise unavoidable transfer” reduced Roth Staffing’s new value defense to $28,248.17, and therefore entitled FLT to recover $53,749.40 ($81,997.57-$28,248.17) on its preference claim. The Bankruptcy Court held that because FLT’s payments made pursuant to the Wage Order occurred after the bankruptcy petition was filed, these payments could not enter into the preference calculation. Because the Bankruptcy Code does not set forth a cutoff for when an “otherwise unavoidable transfer” should be considered in computing “new value,” the Court looked to caselaw. The Court concluded that the cutoff should be the petition date, relying on language from our opinion in In re New York City Shoes, Inc., describing the three requirements for establishing a new value defense as follows: First, the creditor must have received a transfer that is otherwise voidable as a preference under § 547(b). Second, after receiving the preferential transfer, the preferred creditor must advance “new value” to the debtor on an unsecured basis. Third, the debtor must not have fully compensated the creditor for the “new value” as of the date that it filed its bankruptcy petition. 880 F.2d 679, 680 (3d Cir.1989) [hereinafter New York City Shoes ] (emphasis added). The Bankruptcy Court found our opinion in New York City Shoes to be controlling, and, therefore, held that since the otherwise unavoidable transfer was made after the petition date, FLT was not entitled to recover on its preference claim. The District Court affirmed the Bankruptcy Court’s order denying summary judgment for FLT, but stated that it found our language in New York City Shoes regarding the bankruptcy petition date" }, { "docid": "10213232", "title": "", "text": "credit for the $9,097.29 value in excess of the payment received, however, because new value cannot be carried forward to offset later preferential transfers. In contrast, if the “net result” rule under former Section 60 of the Act were applied, this excess value would be credited: the sum of the checks paid would be netted against total shipments, yielding a preference recovery of only $485.89. On the other hand, if the majority rule were applied, Bergen would not be entitled to offset the first two shipments during this period, because it was paid $21,-416.10 and $9,752.12 on account of those shipments on December 29th and January 15th respectively. Under the majority rule, the Committee would have recovered an additional $31,168.22. IV. CONCLUSION The subsequent advance rule as articulated in Garland is the appropriate standard to be applied under Section 547(c)(4). Both motions for summary judgment are granted in part and denied in part. Bergen’s infusion of new value provides a de fense to $67,361.75 of the $76,944.93 preferential transfers sought by the Committee, but the Committee is entitled to recover $9,538.18 in preferential transfers from Bergen that were not covered by subsequent advances. This memorandum opinion constitutes this Court’s findings of fact and conclusions of law. An appropriate order and judgment should be submitted forthwith by the Committee. . All statutory references are to the Bankruptcy Code, 11 U.S.C., unless otherwise noted. . Section 547(b) provides as follows: (b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5) that enables such creditor to receive" }, { "docid": "9564333", "title": "", "text": "been met, the plaintiffs may not avoid and recover the payments if one of the defenses found in 11 U.S.C. § 547(c) applies. Id. The defendant maintains that its provision of new value bars the plaintiffs’ recovery under § 547(c)(4). The defendant’s subsequent new value defense has two separate components. First, the defendant argues that its forbearance during the sixty-day period allowed under the parties’ agreed order constituted new value. For this proposi tion the defendant relies on Southern Technical College, Inc. v. Hood, 89 F.3d 1381 (8th Cir.1996). In Hood, the defendant provided the debtor with the leased property after the preferential transfer and before the filing of the bankruptcy petition. The debtor failed to pay for the use of these properties during this period. The Eighth Circuit held under these facts that the defendant had replenished the bankruptcy estate by giving the debtor rent-free use of the leased properties for two months. Id. at 1385. Accordingly, the debtor could not avoid the preferential transfer to the extent that this “new value” remained unpaid. Applying Hood to the facts in this case, the defendant can offset the amount of the August 1997 rent which remained unpaid following the plaintiffs’ bankruptcy filing. The plaintiffs argue that the August 1997 payment was implicitly subsumed into the $36,000 purchase price, but the Court finds no evidence in the record which would support this assertion. Thus, the maximum amount the plaintiffs may recover here is $21,320.63, the difference between the total preferential transfers and the August 1997 rent. The defendant also contends that subsequent new value arose from the fact that the plaintiffs ultimately purchased the trailers under the parties’ sales agreement for much less than their market value. Because the difference between the sales price and the fair market value exceeds the amount of the preferential payments, the defendant asserts that the plaintiffs’ recovery is barred as a matter of law. The plaintiffs claim that this excess value cannot constitute new value because the defendant’s receipt of the $36,000 was more than it would have been entitled to receive under the lease" }, { "docid": "19774184", "title": "", "text": "make the payments, John Thompson testified that he believed it was understood but did not recall specifically discussing it. (J.A. at Tab 19, p. 48.) As the bankruptcy court found, Thompson’s testimony establishes only that Thompson knew Omega would make all the payments, not that Buonpane knew. Accordingly, the Panel holds that the bankruptcy court did not err by granting partial summary judgment to Buonpane on this issue. The bankruptcy court’s order is affirmed in this regard. C. Whether the trustee can recover $20,142.50 as preferential transfers. Following a trial on the merits, the bankruptcy court held that payments made on the note in the 90 days prior to the petition filing date were recoverable by the trustee as preferential transfers pursuant to § 547(b) and accordingly entered a judgment against Buonpane. During the oral argument, Buonpane conceded that all the elements of § 547(b) are met. The only remaining issue is whether Buonpane is entitled to the “new value” defense. Based on the definition of “new value” under 11 U.S.C. § 547(a)(2), the bankruptcy court held that because the security interest was voidable on the petition date, no new value was given. Buonpane argues that the payments that Omega made in the 90 days preceding the petition date are not avoidable because they fall under § 547(c)(1). That exception applies to transfers that are intended as and resulted in a contemporaneous exchange for new value. Buonpane asserts that the exchange here was the release of collateral subject to the security interest. The trustee responds that no new value was exchanged because either Buonpane did not have a valid security interest or the failure to perfect the security interest makes it avoidable. The bankruptcy court applied the “composite documents approach,” which considers all of the documents “executed between a debtor and creditor” to determine whether a security interest has been granted. Bavely v. Wandstrat (In re Harbour Lights Marina, Inc.), 146 B.R. 963, 968 (Bankr.S.D.Ohio 1992), affd, 153 B.R. 781 (S.D.Ohio 1993). This approach examines all the documents executed between a debtor and a creditor to determine, if taken together," }, { "docid": "10719704", "title": "", "text": "Judgment (Doc. # 17) on April 15, 2013. The Trustee did not file a reply to Defendant’s Response. For the reasons set forth in this Court’s Memorandum Opinion Regarding Cross-Motions for Summary Judgment entered on this date, the Court hereby: 1. Finds that the Payment: (i) benefited Agree Auto; (ii) was made on account of an antecedent debt; (iii) was made while the Debtor was insolvent; (iv) was made within the Preference Period; and (v) enabled Agree Auto to receive more than other unsecured creditors in the Debtor’s bankruptcy proceeding; 2. Finds that the Trustee has established all of the elements of an avoidable preferential transfer under § 547(b) with respect to the Debtor’s Payment of $3,518.50 to Agree Auto; 3. Finds that the parties did not intend a contemporaneous exchange of the Payment for the New Vehicle; 4. Finds that the Debtor received no new value in exchange for her Payment to Agree Auto; 5. Finds that the contemporaneous exchange defense pursuant to § 547(c)(1) is inapplicable; and 6. Finds that the Trustee is entitled to avoid the Debtor’s Payment of $3,518.50 to Agree Auto as a preferential transfer pursuant to § 547(b). As a consequence, the Court hereby: 1. Grants Plaintiffs Motion; and 2. Denies Defendant’s Motion. IT IS SO ORDERED. . Agree Auto also asserts in the Answer that the payments are not avoidable because (i) the payments were for debt incurred by rhe Debtor in the ordinary course of business pursuant to 11 U.S.C. § 547(c)(2); and (ii) Agree Auto gave subsequent new value to the Debtor that is not secured by an otherwise unavoidable security interest pursuant to 11 U.S.C. § 547(c)(4). (Ans. ¶¶ 12-13.) Agree Auto does not pursue these arguments in Defendant's Motion. Accordingly, the Court will address only' whether the transfer was a contemporaneous exchange for new value pursuant to 11 U.S.C. § 547(c)(1). . A redacted version of the Purchase Agreement is also attached to the Stipulation. Because there are no material differences between the redacted and unredacted versions of the Purchase Agreement, the Court will refer to both filings as" }, { "docid": "21195711", "title": "", "text": "OPINION ALAN E. NORRIS, Circuit Judge. The bankruptcy trustee of Southern Air Transport, Inc. (“SAT”), a debtor in a Chapter 11 proceeding, seeks to recover a $100,000 payment made to defendant Triad International Maintenance Corporation (“TIMCO”) as an avoidable preference under the Bankruptcy Code. 11 U.S.C. § 547(b). TIMCO advances two theories in response: that it was a fully secured creditor at the time of the payment; alternatively, that the payment represented a contemporaneous exchange for new value, an exception to the usual rule prohibiting transfers of interest in the debtor’s property made within 90 days of the filing of the bankruptcy petition. 11 U.S.C. § 547(c). The bankruptcy court ruled in favor of the trustee in bankruptcy, and the district court affirmed. Because we hold that the trustee in bankruptcy failed to meet his burden of proving the elements necessary to establish that the payment to TIMCO was preferential, and thus avoidable under 11 U.S.C. § 547(b), we REVERSE the judgment of the district court and REMAND the case to the bankruptcy court for further proceedings consistent with this opinion. I. Given that we review the bankruptcy court’s findings of fact for clear error, In re 5900 Assocs., Inc., 468 F.3d 326, 329 (6th Cir.2006), the following summary is drawn largely from that court’s order granting summary judgment. SAT is a Nevada corporation with its principal place of business in Columbus, Ohio. As its name suggests, SAT is engaged in the air transportation of cargo. As part of its operation, it leases planes, including the plane at issue in this appeal, a McDonnell Douglas DC8-73 Aircraft (“the Aircraft”) leased from Aerolease Financial Group, Inc. (“Aerolease”). SAT began leasing the Aircraft in 1994 for a five-year term. TIMCO is a Delaware corporation with its principal offices in Greensboro, North Carolina. Its primary business is the service, repair, maintenance, and storage of aircraft. In 1992, it entered into an aircraft maintenance agreement with SAT. The bankruptcy court opinion provides the following detail concerning the financial dealings between the parties during the months leading up to the disputed transfer: On or about" }, { "docid": "19735965", "title": "", "text": "Nor is Webster entitled to summary judgment on the issue. He only argued that in determining the industry norm no transactions during a period of debtor distress can be taken into account. Webster did not point to any decision taking the approach this court has adopted (an approach which may be unique). TMNG was thus not put on notice that in moving for summary judgment (and in opposing Webster’s motion for summary judgment) its expert’s opinion should include a limited universe of transactions under the approach this court has adopted. Nothing in the record demonstrates that Katz would not be able to show that his opinion did not include any transactions of the character that this court believes ought not be included in determining the industry norm. Accordingly, Webster has not made the necessary summary judgment showing. B. “New value” defense under § 54.7(c) (4.) TMNG also asserts a partial affirmative defense in the amount of $73,161.00 under the “new value” provision found in 11 U.S.C. § 547(c)(4). That provision prohibits the avoidance of a transfer to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor— (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor.... Id. The new value defense “is grounded in the principle that the transfer of new value to the debtor will offset the [preferential] payments, and the debtor’s estate will not be depleted to the detriment of other creditors.” A.I. Credit Corp. v. Drabkin (In re Auto-Train Corp.), 49 B.R. 605, 612 (D.D.C.1985). It “encourages creditors to extend revolving credit to financially distressed debtors, thus obviating the burden of making payments upfront and allowing many such debtors to avoid bankruptcy,” Webster v. MicroLink, LLC (In re NETtel Corp., Inc.), 323 B.R. 1, 3 (Bankr.D.D.C.2005) (“MicroLink ”), while at the same time “ensuring] equal treatment among creditors by recognizing that preferential creditors conferring a" }, { "docid": "17017081", "title": "", "text": "14,1980. McClendon, Wadsworth’s trustee in bankruptcy, filed a complaint in the bankruptcy court seeking to recover the $21,691.45 payment as a preferential transfer voidable under § 547 of the bankruptcy code. The bankruptcy court held that the payment was a preference and ordered it returned. The district court reversed and McClendon appeals. The two issues presented on appeal are (1) whether new value was given by Cal-Wood to Wadsworth pursuant to § 547(c)(4); and (2) whether there was a contemporaneous exchange for new value pursuant to § 547(e)(1). II As an initial matter, it would appear that Cal-Wood has no claim under § 547(c)(4). That section carves out the so-called new value exception to the trustee’s avoidance powers. It provides that, to foreclose the trustee’s avoidance power, new value must have been given after the transfer from the bankrupt to his creditor. Here, new value in the form of goods and materials (or credit for those goods and materials) was given on January 22 and 23. Yet the check that Cal-Wood received was not honored by the bank until February 14. Section 547 provides that if a transfer is in the form of a check and if the check is not honored within ten days from execution (this check was executed in December), then the transfer is made when the check is honored by the drawee bank. 11 U.S.C. § 547(e)(2)(A) and (B) (Supp. Y 1981); Matter of Duffy, 3 B.R. 263 (Bkrtcy.S.D.N.Y. 1980). Thus new value was given before the transfer and § 547(c)(4), by its terms, does not apply. The trustee may thus avoid the payment. Cal-Wood suggests, however, that the judicially-created “net result rule” should be applied to this case to foreclose the trustee’s avoidance power. The net result rule was a judicial creation under the 1898 Bankruptcy Act. It provided that if there was a running account of credit and payment between debtor and creditor, all transactions over the preference period were examined. If more credits than payments occurred, even though individual payments during the period might comprise a preference, there was held to have been" }, { "docid": "6905257", "title": "", "text": "these same transfers. V The preference section of the Bankruptcy Code requires that new value must not be repaid by an otherwise unavoidable transfer. Because the parties agree that the transfers made in this ease are preferences under section 547(b), they are not “unavoidable.” We conclude that Ever-Fresh is entitled to a new value defense for the entire amount of preferential transfers made by IRFM. AFFIRMED. . These transactions represent the amount of goods shipped by Ever-Fresh between each payment by IRFM. . In computing the amount he seeks to avoid, Mosier erroneously states that the total amount of new value given was $253,639.31. As the table indicates, the amount of new value given was actually $276,008.47. Using this figure and Mosier's method of calculating the allegedly avoidable amount, we arrive at an amount of \"unpaid” new value of $112,741.23 and an allegedly avoidable amount of $50,526.01. At a hearing in the bankruptcy court on this issue, Mosier conceded that the $276,008.47 figure was correct and also conceded that the preference amount was approximately $50,000. Mosier's miscalculation is irrelevant to our decision, however, because we hold that Ever-Fresh is entitled to a full new value offset. . Ever-Fresh asserts an equitable argument that Mosier is estopped from raising this issue on appeal because he stipulated to the approach used by the bankruptcy court to calculate the new value offset. Given the confusion in the courts over the proper interpretation of section 547(c)(4), we address this appeal on the merits. . In order to establish a preference a trustee must show: 1) that there has been a transfer, 2) of the debtor's property, 3) to or for the benefit of a creditor, 4) for or on account of an antecedent debt, 5) made while the debtor was insolvent, 6) within 90 days before bankruptcy, 7) and the effect of the transfer was to give the creditor more than he would have otherwise received in a Chapter 7 distribution. 11 U.S.C. § 547(b). For purposes of summary judgment, Mosier and Ever-Fresh agree that the transfers made by IRFM to Ever-Fresh constitute preferences" }, { "docid": "8308951", "title": "", "text": "fact regarding the standards that prevail in the lumber or wood products industry for the payment of bills. Without agreement between the parties as to such industry standards, this court would require an eviden-tiary hearing to determine the standards. See, e.g., In re Rave Communications, Inc., 128 B.R. 369, 372-73 (Bankr.S.D.N.Y.1991). Such a question of fact precludes this court from granting the trustee’s motion for summary judgment. At the same time, Keener has failed to satisfy its burden of proof as to section 547(c)(2) and therefore Keener’s cross-motion for summary judgment is also denied. Subsequent Transfer for New Value under 547(c)(4) Section 547(c)(4) of the Bankruptcy Code precludes a trustee from avoiding a transfer (4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor— (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor. 11 U.S.C. § 547(c)(4). Section 547(c)(4), the “subsequent advance” rule, is a statutory offset under which a creditor may reduce an otherwise avoidable preference to the extent that the creditor, subsequent to receiving the preferential transfer from the debtor, provides credit on an unsecured basis for the debtor’s purchase of goods or services. In re Hancock-Nelson Mercantile Co. Inc., 122 B.R. 1006, 1016 (Bankr.D.Minn.1991). In the present case, Keener shipped goods to the debtors on three occasions subsequent to the September 16,1988 payment and has not received payment for those shipments which totalled $24,404.46. The trustee is seeking to recover as a preference $25,386.85, the amount of the September 16, 1988 payment. Unfortunately, this court may not consider 11 U.S.C. § 547(c)(4) as a defense to the trustee’s preference action because Keener has not pleaded it as an affirmative defense. Federal Rule of Bankruptcy Procedure 7008(c). See In re Fisher, 100 B.R. 351, 355-56 (Bankr.S.D.Ohio 1989) (failure to plead 547(c) affirmative defense resulted in waiver of that defense and its exclusion from the" }, { "docid": "10810111", "title": "", "text": "OPINION RENDELL, Circuit Judge: This appeal presents an issue of first impression in our Court: can a post-petition payment to a creditor pursuant to a Wage Order entered at a debtor’s request reduce the creditor’s new value defense— and thereby increase preference liability— the same as it would if the payment had been made pre-petition? Under the Bankruptcy Code, the trustee may avoid certain preferential transfers made by a debtor to a creditor in the 90 days before its bankruptcy petition was filed. See 11 U.S.C. § 547(b) (2006). A creditor who gives the debtor new value subsequent to a preference payment, however, may use what is referred to as the “new value” defense to offset an otherwise avoidable preference. See id. § 547(c)(4). The new value defense is not applicable to the extent that, thereafter, the debtor makes “an otherwise unavoidable transfer” to the creditor on account of the value received. Id. § 547(c)(4)(b). We hold that where “an otherwise unavoidable transfer” is made after the filing of a bankruptcy petition, it does not affect the new value defense. For this reason, we will affirm the order of the District Court affirming the Bankruptcy Court. I. Background The facts giving rise to this appeal are undisputed. Friedman’s, Inc. (“the Debt- or”) filed for bankruptcy under Chapter 7 of the Bankruptcy Code on January 22, 2008, and thereafter the case was converted to one under Chapter 11 of the Bankruptcy Code. In the 90 days prior to filing for bankruptcy (“the preference period”), the Debtor made payments for personnel to Roth Staffing (“Appellee”) totaling $81,997.57. After these preferential transfers, but before the petition was filed, Roth Staffing provided services valued at $100,660.88 to the Debtor. The money owed for these services remained unpaid as of the date the bankruptcy petition was filed. On January 25, 2008, the Debtor filed a motion in Bankruptcy Court seeking authority to pay its employees and independent contractors (collectively, “Employees”), pre-petition wages, compensation, and related benefits. It stated that as of the petition date, it had approximately 3,500 Employees and outstanding obligations to them in" }, { "docid": "15988512", "title": "", "text": "late-rent payments were preferential transfers within the meaning of § 547(b), and that conclusion is not challenged in these appeals. The Bankruptcy Court also held that STC received subsequent new value from Graham and Hood in exchange for the late-rent payments, and thus STC could not recover those payments despite the fact that they were preferential transfers. STC now argues that the Bankruptcy Court and the District Court erred when they held that Graham and Hood provided STC with new value after Graham and Hood received the preferential transfers. In bankruptcy cases, this court sits as a second court of review and applies the same standards as the district court. United States v. Roso (In re Roso), 76 F.3d 179, 181 (8th Cir.1996). “We review de novo the granting of a summary judgment motion.” Maitland v. University of Minn., 43 F.3d 357, 360 (8th Cir.1994). If the record shows that there is no genuine issue of material fact and that the prevailing party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment. Id.; see also Fed.R.Civ.P. 56(c). STC argues that it received no new value within the meaning of § 547(c)(4) after its late-rent payments. The Bankruptcy Court held that STC’s continued use of the properties during March and April, without the payment of rent, constituted subsequent new value. Section 547, in pertinent part, provides as follows: (c) The trustee may not avoid under this section a transfer— (4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor— (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor.... The statute defines new value as “money or money’s worth in goods, services, or new credit____” 11 U.S.C. § 547(a)(2). Section 547(c)(4) thus modifies the general rule that preferential transfers may be recovered by creating an exception for situations in which" }, { "docid": "19774169", "title": "", "text": "not purchase or redeem its stock, and (3) the payments that Omega made were for the benefit of the Thompsons. The bankruptcy court conducted a trial on the fourth count of the trustee’s complaint which asserted that payments totaling $20,142.50 made to the Buonpanes by Omega in the 90 days preceding the petition date were voidable preferential payments under 11 U.S.C. § 547(b). On this claim, the parties stipulated that Omega was insolvent during those 90 days, that the claims of creditors will not be paid in full, that payments totaling $20,142.50 were made during those 90 days, that the payments were to and for the benefit of Buonpane, and that those payments were for an antecedent debt. Following the trial, the bankruptcy court issued a detailed memorandum opinion concluding that Buonpane held a valid security interest in the assets of Omega, but because the security interest was not perfected and was therefore voidable, Buonpane gave no new value for the payments he received on the note under § 547(c)(1). Therefore, the court held that Buonpane received voidable preferential payments totaling $20,142.50. The trustee timely appealed the bankruptcy court’s February 1, 2007 order granting the Buonpanes’ motion for partial summary judgment and the July 30, 2007 order to the extent that it found that Buonpane held a valid security interest. Buonpane timely appealed the July 30, 2007 order to the extent that it found he received voidable preferential payments totaling $20,142.50. IV. DISCUSSION A. Whether each installment payment on the note is a separate transfer under the fraudulent transfer statutes. The trustee’s complaint asserts a claim for constructive fraud under Ohio Revised Code § 1336.04, pursuant to her powers under 11 U.S.C. § 544(b)(1), which permits the trustee to “avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502.” In pertinent part, Ohio Revised Code Ann. § 1336.04 provides: 1336.04 Intent to defraud; property depletion; debts incurred beyond ability to pay (A) A" } ]

[ { "docid": "10425068", "title": "", "text": "he was admitted to bail a little later upon the afternoon of that very day. We cannot agree. The appeal at bar is moot. It was moot even when the notice of appeal was filed on November 29, 1943. The writ of habeas corpus is one of the great writs upon which the liberty of the individual depends. Its grant cannot be permitted to turn upon an academic question of whether at a given instant in time an individual was within the custody of a United States marshal when in fact he was enlarged on bail a few hours later. Indeed, if we were to reverse the order of the court below and direct it to grant the writ, our mandate would be a nullity for the appellant is not presently deprived or restrained of his liberty. See the actual wording of R. S. § 754, 28 U.S.C.A. § 454 Cf. the facts of Ex parte Catanzaro, 3 Cir., 138 F.2d 100, 101. But quite aside from the foregoing, the learned District Judge committed no error in denying the petition for the writ. The courts of the United States have held almost without exception that the writ of habeas corpus will not lie to question the sufficiency of an indictment which on its face is within the jurisdiction of the court to which it was returned and that the writ of habeas corpus will not serve as a writ of error. Knewel, Sheriff, v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036; Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; Valentina v. Mercer, 201 U.S. 131, 26 S.Ct. 368, 50 L.Ed. 693; Horner v. United States, 143 U.S. 570, 12 S.Ct. 522, 36 L.Ed. 266; Ex parte Mason, 105 U.S. 696, 26 L.Ed. 1213; Ex parte Carll, 106 U.S. 521, 1 S.Ct. 535, 27 L.Ed. 288; In re Frederich, 149 U.S. 70, 75, 13 S.Ct. 793, 37 L.Ed. 653. The court below had jurisdiction of the appellant and of the offense with which he is charged. As we have stated the appellant has raised" } ]

[ { "docid": "3753660", "title": "", "text": "Service, now scrupulously adhering to the language of Section 1254(a) (2), contends that its error in determining the appellant’s status in 1956 and its order made possible only by virtue of that error, has now truly deprived the appellant of his status within the meaning of Section 1254(a) (2). To yield to this argument would be to become party to a “bootstrap” operation by means of which officers of the United States seek to turn their own error, however innocent, into a bar to the assertion of a right by the victim of this very error. We cannot hold that this is what the statute demands. Cf. United States ex rel. Accardi v. Shaughnessy, 1954, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681. Such a construction would presuppose an intention on the part of Congress to provide in the same section that grants a right, an illogical trap by which an alien could be deprived of that very right. On the contrary we hold that McLeod’s 1956 departure did not interrupt his “continuous” presence within the meaning of the statute and that he, therefore, is eligible for discretionary relief with respect to his present application for suspension of deportation. We are construing here the meaning of the term “continuous” contained in a specific statute and we hold only that a departure from the United States such as that made by the appellant in 1956 under the circumstances at bar, does not interrupt the continuity of his presence in the United States within the meaning of that specific statutory provision. One last point must be dealt with. One of the grounds for refusing the writ of habeas corpus below was that since McLeod is now out of custody on bond, the writ does not lie. This position is correct. Johnson v. Hoy, 1913, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497; United States ex rel. Potts v. Rabb, 3 Cir., 1944, 141 F.2d 45. The proper procedure would have been to have filed a complaint in the court below requesting a temporary restraining order and a declaratory judgment asserting" }, { "docid": "15043983", "title": "", "text": "Act of 1952 and the Administrative Procedure Act of 1946, immigration orders were reviewable only on petition for writ of habeas corpus.. In such proceedings the physical presence of the petitioner is meaningful. The essence of habeas corpus is the inquiry as to the physical detention of the individual and the delivery of his body into the hands of the courts. But in a proceeding questioning the validity of administrative action there is no necessary reason to produce the plaintiff in person in court. In Kokoris v. Johnson, 4 Cir., 1952, 195 F.2d 518, 519, five foreign seamen brought a declaratory action under the Administrative Procedure Act for review of agency action and for injunctive relief. The Court had this to say: “It should be noted in this connection that we are dealing not with habeas corpus proceedings, where presence of the person deprived of liberty is essential to the court’s jurisdiction, but with proceedings questioning the validity of administrative orders and asking that they be enjoined or set aside. We think that such proceedings are not rendered moot merely because petitioners are not within the country and that they are entitled to have the orders, which affect their rights and status, vacated or declared void if violative of the provisions of the Administrative Procedure Act.” Taken together, the effect of the Administrative Procedure Act and the Immigration Act is to make available judicial review of •agency action relating to immigration by suits for a declaratory judgment and for mandatory and prohibitory injunctions, and to enlarge the scope of review. See Jaffe, The Right to Judicial Review, 71 Harv.L.Rev. 769, 792 (1958). In immigration and deportation cases courts have been especially responsive to the powerful pull of the Act in the direction of the right of judicial review of agency action. Thus, notwithstanding the absence of express statutory authority for judicial review of the deportation statute, the Supreme Court has held that the Administrative Procedure Act allows judicial review of deportation orders. Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868. In Brownell v. Tom We" }, { "docid": "4319885", "title": "", "text": "Cir. 1940, 109 F.2d 388; Allen v. American Fidelity & Casualty Co., 5 Cir. 1935, 80 F.2d 458; Carpenter v. Edmondson, 5 Cir. 1937, 92 F.2d 895. Rule 57 of the Federal Rules of Civil Procedure states that “The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.” See 6 Moore, Federal Practice section 5707 and chapter 57 generally. The language of the Federal Declaratory Judgment Act itself leaves no doubt that the declaratory judgment is an optional, alternative remedy. The act authorizes a declaratory judgment “whether or not further relief is or could be sought”. 28 U.S.C. § 2201. In a number of analogous situations courts permit a declaratory judgment as a substitute for habeas corpus. Thus an alien may use a declaratory judgment rather than habeas corpus to test the legality of exclusion proceedings. Brownell v. Tom We Shung, 1956, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225. Or a declaratory judgment in lieu of habeas corpus to test the legality of a deportation order. Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed 868. See also Cruz-Sanchez v. Robinson, 9 Cir. 1956, 249 F.2d 771, 774; Brovich v. Holton, 2 Cir. 1955, 222 F.2d 840, 841. The District of Columbia Circuit has held that a person convicted of a crime may bring a declaratory judgment against his parole board instead of habeas corpus against his jailer. Hurley v. Reed, D.C.Cir.1961, 288 F.2d 844. Cf. Hom Sin v. Esperdy, S.D.N.Y.1965, 239 F.Supp. 903, (March 9, 1965) (review of immigrant preference petition). Of course, extradition proceedings do not stand on exactly the same footing as exclusion, deportation, or parole proceedings. An administrative officer conducts the exclusion or deportation or parole hearing; a United States District Court or Commissioner conducts the extradition hearing. The cases on exclusion, deportation, and parole hearings rest partly on Section 10 of the Administrative Procedure Act; the APA may not apply to extradition hearings. But there is a persuasive analogy between Section 10 of the APA and the Declaratory Judgment Act." }, { "docid": "3753661", "title": "", "text": "within the meaning of the statute and that he, therefore, is eligible for discretionary relief with respect to his present application for suspension of deportation. We are construing here the meaning of the term “continuous” contained in a specific statute and we hold only that a departure from the United States such as that made by the appellant in 1956 under the circumstances at bar, does not interrupt the continuity of his presence in the United States within the meaning of that specific statutory provision. One last point must be dealt with. One of the grounds for refusing the writ of habeas corpus below was that since McLeod is now out of custody on bond, the writ does not lie. This position is correct. Johnson v. Hoy, 1913, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497; United States ex rel. Potts v. Rabb, 3 Cir., 1944, 141 F.2d 45. The proper procedure would have been to have filed a complaint in the court below requesting a temporary restraining order and a declaratory judgment asserting jurisdiction to review the proceedings pursuant to Section 10 of the Administrative Procedure Act. Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868. However, the distinction between the two procedures in deportation cases seems now to be recognized as largely unsubstantial. Brownell v. Tom We Shung, 1956, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225. See also 71 Harv.L.Rev. 85, 187-89 (1957). Moreover the difference between the appellant being in custody and not being in custody would not affect the result in this case were the provisions of the Administrative Procedure Act applied under the circumstances at bar. Of. Heikkila v. Barber, 1953, 345 U.S. 229, 236, 73 S.Ct. 603, 97 L.Ed. 972. In view of the foregoing and in view of the full hearing below, and the lengthy consideration given this case in this court it would be captious for us to dismiss the action and to require the appellant to institute a proceeding under Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009. We will treat" }, { "docid": "15043984", "title": "", "text": "are not rendered moot merely because petitioners are not within the country and that they are entitled to have the orders, which affect their rights and status, vacated or declared void if violative of the provisions of the Administrative Procedure Act.” Taken together, the effect of the Administrative Procedure Act and the Immigration Act is to make available judicial review of •agency action relating to immigration by suits for a declaratory judgment and for mandatory and prohibitory injunctions, and to enlarge the scope of review. See Jaffe, The Right to Judicial Review, 71 Harv.L.Rev. 769, 792 (1958). In immigration and deportation cases courts have been especially responsive to the powerful pull of the Act in the direction of the right of judicial review of agency action. Thus, notwithstanding the absence of express statutory authority for judicial review of the deportation statute, the Supreme Court has held that the Administrative Procedure Act allows judicial review of deportation orders. Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868. In Brownell v. Tom We Shung, 1956, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225, the Government attempted to distinguish Pedreiro on the ground that an alien seeking initial admission into the United States is in a different position from that of a resident alien against whom deportation proceedings are instituted. The Court brushed off this distinction. It held that there was nothing in the Immigration Act to bar an alien’s challenge of exclusion orders by either habeas corpus proceedings or a declaratory judgment action under the Administrative Procedure Act. The Court pointed out that for a habeas corpus proceeding the alien must be detained, but a declaratory judgment action requires no such basis. “ ‘Exemptions from the * * * Administrative Procedure Act are not lightly to be presumed,’ * * * and unless made by clear language or supersedure the expanded mode of review granted by that Act cannot be modified.” 352 U.S. 185, 77 S.Ct. 256. A person may be just as “affected or aggrieved” by agency action if he is a nonresident and absent from" }, { "docid": "4319886", "title": "", "text": "a deportation order. Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed 868. See also Cruz-Sanchez v. Robinson, 9 Cir. 1956, 249 F.2d 771, 774; Brovich v. Holton, 2 Cir. 1955, 222 F.2d 840, 841. The District of Columbia Circuit has held that a person convicted of a crime may bring a declaratory judgment against his parole board instead of habeas corpus against his jailer. Hurley v. Reed, D.C.Cir.1961, 288 F.2d 844. Cf. Hom Sin v. Esperdy, S.D.N.Y.1965, 239 F.Supp. 903, (March 9, 1965) (review of immigrant preference petition). Of course, extradition proceedings do not stand on exactly the same footing as exclusion, deportation, or parole proceedings. An administrative officer conducts the exclusion or deportation or parole hearing; a United States District Court or Commissioner conducts the extradition hearing. The cases on exclusion, deportation, and parole hearings rest partly on Section 10 of the Administrative Procedure Act; the APA may not apply to extradition hearings. But there is a persuasive analogy between Section 10 of the APA and the Declaratory Judgment Act. Both statutes broadly authorize declaratory judgment actions without specifying any particular types of lawsuits. If, as Tom We Shung and Pedreiro hold, Section 10 of the APA permits a declaratory judgment in lieu of habeas corpus, the Federal Declaratory Judgment Act also authorizes a declaratory judgment as a substitute for habeas corpus. The underlying policies of the Declaratory Judgment Act support the use of declaratory judgments in extradition cases. It is a useful remedy permitting a direct confrontation between the two real parties in interest, the ex-traditee and the demanding government, without the triangular complications of habeas corpus. See Ornelas v. Ruiz, 1896, 161 U.S. 502, 17 S.Ct. 689, 40 L. Ed. 787; Cleugh v. Strakosch, 9 Cir. 1940, 109 F.2d 330, 332. If an accused who is out of custody mistakenly brings habeas corpus, the court may treat the petition as a suit for a declaratory judgment. McLeod v. Peterson, 3 Cir. 1960, 283 F.2d 180. If the accused is in custody, the Federal Declaratory Judgment Act is no bar to a declaratory judgment" }, { "docid": "4319906", "title": "", "text": "The proceedings referred to were habeas corpus proceedings, and in both instances Judge Christenberry denied plaintiff’s petition. See the following docket numbers of this Court: Miscellaneous Docket No. 1117, In the Matter of the Application of Joseph Samuel Wacker for a Writ of Habeas Corpus, writ denied by Judge Christenberry on April 22, 1963; and Miscellaneous Docket No. 1142, In the Matter of United States of America, ex rel. J. Samuel Wacker v. Dominion of Canada, Applying for a Writ of Habeas Corpus, writ denied by Judge Chris-tenberry on February 26, 1964. “Now Petitioner Wacker is attempting by a third effort to frustrate the extradition processes which exist between the United States of America and the Dominion of Canada. Believing, as we do, that the defendant Consul General in his representative capacity is immune to this action, as well as is the Dominion of Canada itself, we have no alternative but to dismiss this suit. Wacker has been accorded careful scrutiny of all the proceedings brought in this jurisdiction in the two habeas corpus proceedings referred to. He should not be permitted further to frustrate the action of this Court.” I agree with the learned district judge. The analogy suggested by cases on exclusion and deportation hearings does not apply, because there is a real need. for the remedy by declaratory judgment in exclusion and deportation cases which need does not exist in extradition orders. In Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 51, 75 S.Ct. 591, 99 L.Ed. 868, the Court referred to the inadequacy of habeas corpus for the review of deportation orders by saying that it would not be in keeping with either the Immigration Act or the Administrative Procedure Act “to require a person ordered deported to go to jail in order to obtain review by a court.” Likewise, in holding that exclusion orders may be challenged either by habeas corpus or by declaratory judgment action, the Court noted in Brownell v. We Shung, 1956, 352 U.S. 180, 183, 77 S.Ct. 252, 255, 1 L.Ed.2d 225, that “For a habeas corpus proceeding the alien must be" }, { "docid": "9692626", "title": "", "text": "Act does not rigidly require a habeas corpus proceeding to be used exclusively in all cases where prior to the Act it was applicable.” 106 U.S.App.D.C. at pages 53-54, 269 F.2d at pages 244-245. This more flexible approach came after Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225, where in an alien exclusion case, the Supreme Court allowed the plaintiff a choice of remedy, saying: “We conclude that unless the 1952 Act is to the contrary, exclusion orders may be challenged either by habeas corpus or by declaratory judgment action.” 352 U.S. at page 184, 77 S.Ct. at page 255. The 1952 Immigration and Naturalization Act, 66 Stat. 163, 8 U.S.C.A. § 1101 et seq., was held not to bar choice. The Supreme Court, in considering the case, had reemphasized its view on choice of procedure: “Furthermore, as we pointed out in Pedreiro [Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868], such a ‘cutting off’ of judicial review ‘would run counter to § 10 and § 12 of the Administrative Procedure Act.’ 349 U.S. at 51 [75 S.Ct. 594]. ‘Exemptions from the * * * Administrative Procedure Act are not lightly to be presumed,’ Marcello v. Bonds, 349 U.S. 302, 310 [75 S.Ct. 757, 762, 99 L.Ed. 1107] (1955), and unless made by clear language or supersedure the expanded mode of review granted by that Act cannot be modified.” Id., 352 U.S. at page 185, 77 S.Ct. at page 255. In this present ease, as indicated above, the Third Circuit, where appellant is confined, holds that deprivation of counsel at a revocation proceeding is not erroneous. For appellant to obtain relief by way of habeas corpus proceedings in that circuit would necessitate delay and appeal. In the Robbins case there' may have been error in the circuit of imprisonment which would have been corrected by appeal, just as the rule of the Third Circuit, the place of imprisonment in this case, may be erroneous. But in each the problem of delay exists. The probability of success on appeal in habeas" }, { "docid": "23521948", "title": "", "text": "court concluded its opinion noting “[t]he appearance and allegations of discrimination in the case at bar could have been avoided by promulgation of the new detention rule pursuant to the APA.” Louis III at 1001-02. We agree, though we find the discrimination real. The rulemaking requirements of the APA provide a minimum, not a maximum, to administrative procedure; they serve a crucial purpose in guiding administrative discretion. That is, and should be, the lesson of this case. IV. Dismissed Claims: Asylum and Counsel Prior to trial, on the basis of standing, exhaustion, and 8 U.S.C. § 1105a, the district court dismissed seven claims. Plaintiffs appeal the dismissal of two: whether individuals appearing for a preliminary inspection at the border are entitled to have counsel present and notice of that right and whether the INS must provide aliens with notice of the right to file for political asylum. Louis II, 532 F.Supp. 881, 885-92 (S.D.Fla.1982). Plaintiffs argue 8 U.S.C. § 1105a does not bar the claims, adequate injury was alleged to give them standing, and exhaustion was not necessary in the given case. A. 8 U.S.C. § 1105a Construing the Immigration Act of 1917 in Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972 (1953), the Supreme Court held habeas corpus was the only means by which to challenge a final order of deportation. In a series of cases in the mid-1950’s, however, the Court indicated the Immigration Act of 1952 mandates a different result. Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956); Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955). These cases held that in addition to habeas corpus, an action for declaratory or injunctive relief would lie to test the legality of deportation and exclusion orders. Largely in response to Brownell v. Tom We Shung, supra, Congress amended the 1952 Act to include § 1105a, which reads in pertinent part: (b) Notwithstanding the provisions of any other law, any alien against whom a final order of exclusion has been made heretofore or hereafter under" }, { "docid": "4888620", "title": "", "text": "F.2d 576, 579 (11th Cir.1984) (district court consolidated Cuban refugees’ respective declaratory judgment complaint and class action habeas proceeding with another individual petition for habeas relief). A post-Kaminer case, Hurley v. Reed, 288 F.2d 844, 847-49 (D.C.Cir.1961), seemed to step back from Kaminer's bar on declaratory judgment actions when habeas is available in another district, but was itself undercut by later developments. Hurley ruled that the Administrative Procedure Act allowed such suits in the context of a non-District of Columbia prisoner’s claim that he was detained unlawfully because of a parole revocation proceeding in which he had not been afforded a right to counsel. But Hurley critically relied on the notion that § 10 of the APA was an independent grant of jurisdiction, see Pickus v. United States Bd. of Parole, 507 F.2d 1107, 1109 (D.C.Cir.1974) (citing Hurley for the explicit proposition that § 10 of the APA is an independent source of jurisdiction), overcoming Kaminer’s explicit denial of jurisdiction. Since Hurley, the Supreme Court has emphatically rejected the idea that § 10 is a grant of jurisdiction. Califano v. Sanders, 430 U.S. 99, 104-07, 97 S.Ct. 980, 983-85, 51 L.Ed.2d 192 (1977). The precise holding of Kaminer may have itself been overruled in Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955), allowing an alien subject to a deportation order to seek relief by way of a declaratory judgment action. See also Brownell v. We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956) (extending Pedreiro to exclusion orders). But Pedreiro turned on the proposition that § 10 of the APA compelled the Court to give a narrow reading to the 1952 Immigration and Nationality Act’s characterization of deportation orders as “final,” which as used in the prior act had been understood to bar judicial review otherwise than by habeas. Here, of course, the APA provides no suitable handle at all (even apart from Califano’s having dispatched the idea that it was a grant of jurisdiction). As Judge Friendly pointed out in United States v. Doherty, 786 F.2d 491 (2d Cir.1986), extension of" }, { "docid": "3753662", "title": "", "text": "jurisdiction to review the proceedings pursuant to Section 10 of the Administrative Procedure Act. Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868. However, the distinction between the two procedures in deportation cases seems now to be recognized as largely unsubstantial. Brownell v. Tom We Shung, 1956, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225. See also 71 Harv.L.Rev. 85, 187-89 (1957). Moreover the difference between the appellant being in custody and not being in custody would not affect the result in this case were the provisions of the Administrative Procedure Act applied under the circumstances at bar. Of. Heikkila v. Barber, 1953, 345 U.S. 229, 236, 73 S.Ct. 603, 97 L.Ed. 972. In view of the foregoing and in view of the full hearing below, and the lengthy consideration given this case in this court it would be captious for us to dismiss the action and to require the appellant to institute a proceeding under Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009. We will treat the complaint as if it were based upon the Administrative Procedure Act and will direct the court below to so treat it. We will also direct the court below to stay the deportation of the appellant pending application to the Attorney General for discretionary relief pursuant to Section 1254, Title 8 U.S.C.A. . McLeod’s uncontradicted testimony as to the representations made to him at the 1956 hearing was as follows: “A. He [the Special Inquiry Officer] stated to me that in the area from which I had originated, that they only allowed a small quota of people to come to the United States, and he [51] said to me and to Mrs. McLeod it was being unfair to extract one quota number from that allotment to apply to me, due to the fact that I am already here and if I would have my wife to apply for me to re-enter the United States I could do so on a non-quota entry. “And he asked did I want to do that and I said, yes," }, { "docid": "16029395", "title": "", "text": "at the termination of the parole the alien’s “case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” The exclusion of an alien is subject to judicial review under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. Brownell v. We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225. No reason appears to grant a wider scope of review to one not in custody than to one presently detained. But the defendant also urges that this court is without jurisdiction over this action because the plaintiff was outside the district when the defendant received notice of the restraining order. The fact that the plaintiff had been taken outside the jurisdiction of the court at that time is immaterial. The vital question is whether the court had jurisdiction of the defendant when he had “the ability and authority * * * to effectuate the relief which the alien seeks.” Ceballos v. Shaughnessy, 352 U.S. 599, 603, 77 S.Ct. 545, 548, 1 L.Ed.2d 583; Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868. At 7:15 p. m. on July 2, 1957, when the defendant received notice of this court’s restraining order the plaintiff was in his exclusive possession. At 7:50 p. m., the earliest time that the defendant could have relinquished possession, the defendant could have maintained his possession of the plaintiff pursuant to the restraining order. The fact that he chose rather to relinquish his control over the plaintiff should not be allowed to defeat the jurisdiction of this court. The motion to dismiss the complaint is denied. The motion to vacate the restraining order is denied. The temporary restraining order may be continued in effect pending hearing on the motion for temporary injunction to restrain deportation, which is hereby assigned for hearing at Hartford July 22, 1957, at 2:00 p. m. The defendant may be required to produce the plaintiff at the hearing. It is suggested that the pleadings be closed by that date so that the parties may be prepared" }, { "docid": "12463951", "title": "", "text": "103 E.Supp. 507. . Tom We Shung v. Brownell, D.C.Cir., 1953, 207 E.2d 132. . 1953, 346 U.S. 906, 74 S.Ct. 237, 98 L. Ed. 405. The Court merely cited Heikkila v. Barber, 1953, 345 U.S. 229, 73 S.Ct. 603, 97 L.Bd. 972, an expulsion rather than an exclusion case under the Immigration Act of 1917, in which it held that in spite of section 10 of the Administrative Procedure Act, the only means available for review of a deportation order was a writ of habeas corpus. . 1955, 349 U.S. 48, 75 S.Ot. 591, 99 L. Ed. 868, in which the Court held that an alien ordered deported under the 1952 act might test the legality of the order in a declaratory judgment action. . 1955, D.C.Cir., 227 F.2d 40, 97 U.S.App. D.C. 25. . Brownell v. Tom We Shung, 1956, 352 U.S. 180, 77 S.Ct. 252, 1 B.Ed.2d 225. . The motion, was granted upon condition, based upon relator’s proffered stipulation, that a third action which he instituted in the District of Columbia be discontinued. In accordance with the stipulation, the action was discontinued. . He was paroled in accordance with the then existing administrative procedure now sanctioned by statute. Immigration and Nationality Act of 1952, § 212(d) (5), 66 Stat. 188, 8 U.S.C.A. § 1182(d) (5). . See Leng May Ma v. Barber, 1958, 357 U.S. 185, 188, 78 S.Ct. 1072, 2 L.Ed.2d 1246. The Immigration Service permitted relator to remain on parole pending determination of this proceeding. . The distinction between “exclusion” and “expulsion” is noted by the Supreme Court in Leng May Ma v. Barber, 1958, 357 U.S. 185, 78 S.Ct. 1072, 1074, 2 L. Ed.2d 1246. The Court there points out that the use of the word “deportation” in Chapter 4 of Title II of the Immigration and Nationality Act of 1952, dealing with exclusion proceedings, “to refer to the return of excluded aliens from the country * * * reflects none of the technical gloss accompanying its use as a word of art in Chapter 5,” which deals with aliens “who have already" }, { "docid": "23521949", "title": "", "text": "was not necessary in the given case. A. 8 U.S.C. § 1105a Construing the Immigration Act of 1917 in Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972 (1953), the Supreme Court held habeas corpus was the only means by which to challenge a final order of deportation. In a series of cases in the mid-1950’s, however, the Court indicated the Immigration Act of 1952 mandates a different result. Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956); Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955). These cases held that in addition to habeas corpus, an action for declaratory or injunctive relief would lie to test the legality of deportation and exclusion orders. Largely in response to Brownell v. Tom We Shung, supra, Congress amended the 1952 Act to include § 1105a, which reads in pertinent part: (b) Notwithstanding the provisions of any other law, any alien against whom a final order of exclusion has been made heretofore or hereafter under the provisions of section 1226 of this title or comparable provisions of any prior Act may obtain judicial review of such order by habeas corpus proceedings and not otherwise. (c) An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order .... (emphasis supplied). Congress enacted § 1105a to cure what it perceived to be widespread abuse of judicial process by aliens against whom final orders of deportation or exclusion had been entered. See, e.g., Brownell (petitioner We Shung manages to delay deportation seven years while litigating issue of review). Section 1105a(b) makes clear that an alien in custody subject to exclusion has only one means of available review, an action for habeas corpus in the district court following exhaustion of all administrative remedies. Relying on § 1105a the district court dismissed the two claims raised" }, { "docid": "8199559", "title": "", "text": "of New Jersey, maintains that the District Court was without jurisdiction to entertain the action, for a declaratory judgment. Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009, provides that any person adversely affected or aggrieved by any agency action shall be entitled to judicial review of such action, “Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.” Sections 203 and 204 of the Immigration and Nationality Act do not expressly leave the allotting and issuance of immigrant visas within quota groups to the discretion of the Attorney General. Nor, in our opinion, do they do so by implication. In Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962), the Supreme Court of the United States, after citing the cases of Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L. Ed. 868 (1955) and Brownell v. We Shung, 352 U.S. 180, 77 S.Ct. 252 1 L.Ed. 2d 225 (1956), pointed out: “The teaching of those cases is that the Court will not hold that the broadly remedial provisions of the Administrative Procedure Act are unavailable to review administrative decisions under the 1952 [Immigration and Nationality] Act in the absence of clear and convincing evidence that Congress so intended.” Although a different section of the Immigration and Nationality Act was under consideration in the Cort case, the quoted portion of that case applies equally well here. And we hold that the District Court had jurisdiction to entertain the declaratory judgment action in the case before us. In addition to claiming that the prospective quota immigrant has met the requirements of § 203(a) (1) (A), appellant contends that the five years tailoring experience beyond age 21 eligibility requirement is beyond the Attorney General’s power to impose, is arbitrary and capricious, and is discriminatory. In support of the excess authority contention it says that the Service may not consider age and duration of experience as factors in fixing eligibility requirements because the subsection does not specify them as part of the characteristics. Though he" }, { "docid": "14133502", "title": "", "text": "Frito-Lay, Inc., 611 F.2d 1074 (5th Cir. 1980). When the intent of Congress is not clear from the language of the statute itself and the Court is faced with two possible interpretations of the statute, it is appropriate to rely on the legislative history to ascertain that intent. Rogers v. Frito-Lay, Inc., supra; United States v. Noe, 634 F.2d 860 (5th Cir. 1981); Train v. Colorado Public Interest Research Group, 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976). A brief examination of the background to 8 U.S.C. § 1105a(b) indicates that Congress did not intend what Plaintiffs urge this Court to believe. Until 1955, deportation and exclusion orders could only be reviewed by a writ of habeas corpus. Thus, in order to obtain judicial review of a deportation order, the alien had to be in custody. In 1955, the Supreme Court held that the judicial review provisions of the APA permitted an alien to obtain judicial review of a deportation order by an action for declaratory judgment. Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955). The following year the Supreme Court held that an alien could also secure judicial review of an exclusion order by resort to the APA. Brownell v. We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956). In response to these developments, Congress, in 1961, enacted 8 U.S.C. § 1105a in order to overrule the Shung case and to prevent the abuses of the judicial system by which an alien could challenge his exclusion or deportation in successive lawsuits. H.Rep.No.1086, 87th Cong. 1st Sess., reprinted in [1961] 2 U.S.Code Cong. & Ad. News 2950, 2969, 2974. Section 1105a was intended to be the “single, separate, statutory form of judicial review of administrative orders for the deportation and exclusion of aliens from the United States ...” Id. at 2966. It was enacted because “habeas corpus is a far more expeditious judicial remedy than that of declaratory judgment” and because “[t]here is no validity or sound legal basis for any procedure which permits an excluded alien to extend his" }, { "docid": "9692625", "title": "", "text": "of administrative actions permitted by the Administrative Procedure Act. In this Robbins case, appellant sought a declaratory judgment in the District of Columbia requiring release from imprisonment in Georgia after the revocation of a parole. The relief prayed was granted. This court said: “As appellees frankly point out, the Court of Appeals for the Fifth Circuit, in which circuit appellant is confined, has held in Howell v. Hiatt, 1952, 199 F.2d 584, that an attack upon the validity of a parole revocation order must be made by an action against the Board itself in the District of Columbia and not by habeas corpus proceedings against the Warden of the penitentiary in Atlanta where the prisoner is confined. * * * Though the Supreme Court might eventually hold the rule in the Fifth Circuit to be wrong, a habeas corpus proceeding there is at present hardly the sole applicable form of action available to this appellant, especially when an action for a declaratory judgment in the District of Columbia is so readily available. The Administrative Procedure Act does not rigidly require a habeas corpus proceeding to be used exclusively in all cases where prior to the Act it was applicable.” 106 U.S.App.D.C. at pages 53-54, 269 F.2d at pages 244-245. This more flexible approach came after Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225, where in an alien exclusion case, the Supreme Court allowed the plaintiff a choice of remedy, saying: “We conclude that unless the 1952 Act is to the contrary, exclusion orders may be challenged either by habeas corpus or by declaratory judgment action.” 352 U.S. at page 184, 77 S.Ct. at page 255. The 1952 Immigration and Naturalization Act, 66 Stat. 163, 8 U.S.C.A. § 1101 et seq., was held not to bar choice. The Supreme Court, in considering the case, had reemphasized its view on choice of procedure: “Furthermore, as we pointed out in Pedreiro [Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868], such a ‘cutting off’ of judicial review ‘would run counter to § 10 and" }, { "docid": "12463950", "title": "", "text": "the Supreme Court defined “country” in the phrase “country whence they came” appearing in section 20 of the act of 1917 “to designate, in general terms, the state which, at the time of deportation, includes the place from which the alien came” Significantly, while the phrase construed appeared in the expulsion provision, the exclusion provision contained (except for the word “respectively”) identical language. Upon all the foregoing, I am satisfied that the phrase, “country whence he came,” in section 237(a) of the act of 1952 refers to the geographical area from which the alien came without regard to the particular government in control of the area at the time of exclusion. The writ is dismissed. . 59 Stat. 659 (1945). This provision, by its own terms, expired in 1948. All applications for admission under it had to be made within three years of the date on which it became effective, December 28, 1945. . 28 U.S.C.A. § 2201. . 60 Stat. 243 (1946), 5 U.S.C.A. § 1009. . Tom We Shung v. McGrath, D.C.D.C. 1952, 103 E.Supp. 507. . Tom We Shung v. Brownell, D.C.Cir., 1953, 207 E.2d 132. . 1953, 346 U.S. 906, 74 S.Ct. 237, 98 L. Ed. 405. The Court merely cited Heikkila v. Barber, 1953, 345 U.S. 229, 73 S.Ct. 603, 97 L.Bd. 972, an expulsion rather than an exclusion case under the Immigration Act of 1917, in which it held that in spite of section 10 of the Administrative Procedure Act, the only means available for review of a deportation order was a writ of habeas corpus. . 1955, 349 U.S. 48, 75 S.Ot. 591, 99 L. Ed. 868, in which the Court held that an alien ordered deported under the 1952 act might test the legality of the order in a declaratory judgment action. . 1955, D.C.Cir., 227 F.2d 40, 97 U.S.App. D.C. 25. . Brownell v. Tom We Shung, 1956, 352 U.S. 180, 77 S.Ct. 252, 1 B.Ed.2d 225. . The motion, was granted upon condition, based upon relator’s proffered stipulation, that a third action which he instituted in the District of Columbia" }, { "docid": "4319907", "title": "", "text": "referred to. He should not be permitted further to frustrate the action of this Court.” I agree with the learned district judge. The analogy suggested by cases on exclusion and deportation hearings does not apply, because there is a real need. for the remedy by declaratory judgment in exclusion and deportation cases which need does not exist in extradition orders. In Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 51, 75 S.Ct. 591, 99 L.Ed. 868, the Court referred to the inadequacy of habeas corpus for the review of deportation orders by saying that it would not be in keeping with either the Immigration Act or the Administrative Procedure Act “to require a person ordered deported to go to jail in order to obtain review by a court.” Likewise, in holding that exclusion orders may be challenged either by habeas corpus or by declaratory judgment action, the Court noted in Brownell v. We Shung, 1956, 352 U.S. 180, 183, 77 S.Ct. 252, 255, 1 L.Ed.2d 225, that “For a habeas corpus proceeding the alien must be detained or at the least be in technical custody, as the Government puts it. On the other hand, a declaratory judgment action requires no such basis and the odium of arrest and detention is not present.” On the other hand, in criminal extradition proceedings the first writ to be issued is a “warrant for the apprehension of the person so charged.” 18 U.S.C. § 3184. The petitioner in this case is confined in the Parish Prison of New Orleans, Louisiana. The majority holds that the scope of review in a declaratory judgment action is the same as in a habeas corpus proceeding. The point of holding that the Declaratory Judgment Act has opened a backdoor to review of an extradition order escapes me when the front door provided by the Great Writ grants access to the same court of justice and provides the same scope of relief. When there is a treaty or convention for extradition the power is vested in the executive to surrender the person to a foreign government. See Valentine v. United" }, { "docid": "4888621", "title": "", "text": "grant of jurisdiction. Califano v. Sanders, 430 U.S. 99, 104-07, 97 S.Ct. 980, 983-85, 51 L.Ed.2d 192 (1977). The precise holding of Kaminer may have itself been overruled in Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955), allowing an alien subject to a deportation order to seek relief by way of a declaratory judgment action. See also Brownell v. We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956) (extending Pedreiro to exclusion orders). But Pedreiro turned on the proposition that § 10 of the APA compelled the Court to give a narrow reading to the 1952 Immigration and Nationality Act’s characterization of deportation orders as “final,” which as used in the prior act had been understood to bar judicial review otherwise than by habeas. Here, of course, the APA provides no suitable handle at all (even apart from Califano’s having dispatched the idea that it was a grant of jurisdiction). As Judge Friendly pointed out in United States v. Doherty, 786 F.2d 491 (2d Cir.1986), extension of the APA to extradition orders is impossible, as “the variety of officers mentioned in 31 U.S.C. § 3184 — a Supreme Court justice, United States circuit and district judges, a duly authorized magistrate, or a judge of a state court of general jurisdiction — cannot individually or as a group reasonably be deemed to constitute an ‘agency' within 5 U.S.C. § 551(1).” Id. at 502. There is, to be sure, the Fifth Circuit’s decision in Wacker v. Bisson, 348 F.2d 602 (5th Cir.1965). Finding a “persuasive analogy between Section 10 of the APA and the Declaratory Judgment Act” and citing Hurley, the divided court permitted a person awaiting extradition to bring a declaratory judgment action, insisting that it was essentially identical in scope to a habeas action. Id. at 608-09. The extraditee in Wacker was apparently confined within the district in which he brought his declaratory judgment action, so that there was evidently absolute functional equivalence between that and his two previous habeas petitions, an equivalence noted by the dissenting judge in Wacker, id. at" } ]

[ { "docid": "143209", "title": "", "text": "said that as a general rule the debtor’s assertion of counterclaims, even if of substance, does not render the petitioner’s claim the subject of a bona fide dispute. Counterclaims serve, if established, to work a diminution or set-off of the claim of the petitioning creditors, either as part of the Code § 303(b)(1) analysis of the amount of the petitioner’s claim or as part of the Code § 303(h)(1) analysis of generally not paying, in which the amount of a petitioner’s claim may be relevant. The BAFJA amendment has not altered this established treatment of counterclaims. See Harris v. Capehart-Farnsworth Corp., 225 F.2d 268, 270 (8th Cir.1955) (alleged bankrupts should be allowed to establish set-offs and counterclaims which they are lawfully entitled to use in diminunition and extinguishment of petitioning creditor claims); Hirsch v. Archer-Daniels-Midland Co., 288 F.2d 683, 684-5 (8th Cir.1961) (Counterclaims can be asserted in answer to defeat claims of involuntary petitioning creditors); Georgia Jewelers, Inc. v. Bolova Watch Co., 302 F.2d 362, 367 (5th Cir.1962) (Counterclaims have a limited utility in the bankruptcy scheme and that is such may be asserted to reduce either dollar amount of claims, or the number of creditors below the statutory minimum for involuntary relief); In re Kreidler Import Corp., 4 B.R. 256, 259 (Bankr.D.Maryland 1980) (A bona fide counterclaim which exceeds the amount of a claim extinguishes the claim for the purposes of filing involuntary petition); In re Tampa Chain Co., Inc., 35 B.R. 568, 577 (Bankr.S.D.N.Y.1983) (assertion of counterclaim does not make claim contingent and paucity of showing by debtor on merits of counterclaim affords no reason for vitiating claim of petitioner as to status as petitioning creditor). The rejection of Drexler’s argument that the asserted counterclaims create a bona fide dispute does not resolve the matter. This court, consistent with the case authorities, must still evaluate the counterclaims. For several reasons, Drexler’s asserted counterclaims must be considered to be without value. The Sanctions Judgment precludes Drexler from raising in this court the matters raised by his answer and counterclaims that were struck with prejudice. Drexler has urged that the" } ]

[ { "docid": "18531048", "title": "", "text": "final judgment is not subject to a bona fide dispute. In re Everett, 178 B.R. 132, 140 (Bankr.N.D.Ohio 1994); In re Smith, 123 B.R. 423, 425 (Bankr.M.D.Fla.1990); In re Raymark Industries, Inc. 99 B.R. 298, 300 (Bankr.E.D.Pa.1989); In re Caucus Distributors, Inc., 83 B.R. 921, 929 (Bankr.E.D.Va.1988); In re Drexler, 56 B.R. 960, 967 (Bankr.S.D.N.Y.1986); cf. Concrete Pumping Service, Inc. v. King Construction Co. (In re Concrete Pumping Service, Inc.), 943 F.2d 627, 629 (6th Cir.1991). In deciding whether a bona dispute exists, a court does not actually resolve the dispute. Subway Equipment Leasing Corporation v. Sims (In re Sims), 994 F.2d 210, 221 (5th Cir.1993); Rimell v. Mark Twain Bank (In re Rimell), 946 F.2d 1363, 1365 (8th Cir.1991); Bartmann v. Maverick Tube Corporation, 853 F.2d 1540, 1544 (10th Cir.1988); In re Busick, 831 F.2d 745, 750 (7th Cir.1987). Furthermore, mere fail ure of a creditor to demand payment of debt does not excuse failure of the debtor to pay the debt. In re Everett, 178 B.R. 132 (Bankr.N.D.Ohio 1994); In re West Side Community Hospital, Inc., 112 B.R. 243, 256 (Bankr.N.D.Ill.1990); In re All Media Properties, Inc., 5 B.R. 126, 145 (Bankr.S.D.Tex.1980); In re Rimell, 111 B.R. 250, 253 (Bankr.E.D.Mo.1990), affirmed, 946 F.2d 1363 (8th Cir.1991); In re Win-Sum Sports, Inc., 14 B.R. 389, 392-393 (Bankr.D.Conn.1981). The Petitioning Creditors have the burden of establishing a prima facie case that a bona fide dispute does not exist. Subway Equipment Leasing Corporation, 994 F.2d at 221; Atlas Machine & Iron Works, 986 F.2d at 715; Rimell, 946 F.2d at 1365; Rubin v. Belo Broadcasting Corporation (In re Rubin), 769 F.2d 611, 615 (9th Cir.1985). Once this is done, the burden shifts to the debtor to present evidence demonstrating that a bona fide dispute does exist. Subway Equipment Leasing Corporation, 994 F.2d at 221; Rimell, 946 F.2d at 1365. Turning the facts of the instant case, we first conclude that the Petitioning Creditors have failed to meet their burden of proof under § 303(b)(1). This section requires that there are twelve or more creditors exist. The Petitioning Creditors argue that there" }, { "docid": "20301172", "title": "", "text": "an involuntary case ... should expect to pay the debtor’s attorney’s fees and costs if the petition is dismissed.” Id. at 707 (internal citation omitted). Congress drafted § 303(i) “to make an award of costs and fees the norm,” and § 303(i)’s predecessor statute, Bankruptcy Rule 115(e), “makes such awards ‘routine.’ ” In re Kidwell, 158 B.R. 203, 217 (Bankr.E.D.Cal.1993). Absent a per se rule, judgment creditors must assess whether a bankruptcy court will hold that the pendency of an appeal renders their unstayed judgments the subject of a bona fide dispute. If they wrongly rely on their judgments, these creditors risk substantial liability under § 303(i). The lack of a per se rule creates a fundamental dilemma. Judgment creditors can pursue state law collection remedies, hoping that they reach the debtor’s assets before those assets are seized by other creditors or otherwise dissipated. Or they can file an involuntary petition and risk § 303(i) liability. Although § 303(i) damages will not be awarded in every case, the mere possibility of liability will have a chilling effect on judgment creditors. 6. Applying Drexler’s Per Se Rule in the Context of a Sanctions Judgment Marciano emphasizes that the P.C. Judgments were entered after the Superi- or Court struck Marciano’s answers to the cross-complaints and entered his default. Marciano characterizes the P.C. Judgments as “default judgments” and proffers cases in which courts held that a default judgment may be the subject of a bona fide dispute. See, e.g., In re Henry S. Miller Commercial, LLC, 418 B.R. 912, 921 (Bankr.N.D.Tex.2009) (citing “a default judgment where facts were not actually litigated” as an example of a situation justifying an “inquiry into whether a bona fide dispute exists”); AMC Investors, 406 B.R. at 487 (declining to extend Drexler’s per se rule to default judgments); In re Graber, 319 B.R. 374, 379-80 (Bankr.E.D.Pa.2004) (same); Prisuta, 121 B.R. at 476 (concluding that judgments may be the subject of a bona fide dispute based in part on the fact that “no hearings at all were held prior to the entry of the judgments against alleged debtors”). Marciano’s" }, { "docid": "11713536", "title": "", "text": "OF A BONA FIDE DISPUTE The Court finds that the claims of YMC and Prospec are neither contingent as to liability nor the subject of a bona fide dispute. In determining whether creditors’ claims are subject to a “bona fide dispute” within the meaning of § 303(b)(1), courts “have all adopted an objective standard, based on the reasoning of In re Lough, 57 B.R. 993 (Bankr.E.D.Mich.1986)”. Subway Equipment Leasing Corp. v. Sims (In re Sims), 994 F.2d 210, 220-21 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 702, 126 L.Ed.2d 669 (1994). In applying this standard, the Court must determine ‘“whether there is an objective basis for either a factual or a legal dispute as to the validity of the debt. The court need not determine the probable outcome of the dispute, but merely whether one exists.’” In re Data Synco, Inc., 142 B.R. 181, 182 (Bankr.N.D.Ohio 1992) (quoting Bartmann v. Maverick Tube Corp., 853 F.2d 1540, 1544 (10th Cir.1988) (other citations and internal quotation marks omitted)). The unappealed, unstayed final judgments held by YMC and Prospec are not subject to a “bona fide dispute”. See In re Raymark Indus., Inc., 99 B.R. 298, 300 (Bankr.E.D.Pa.1989) (unstayed judgment not subject to bona fide dispute); In re Caucus Distributors, Inc., 83 B.R. 921, 928-29 (Bankr.E.D.Va.1988) (unstayed contempt fine was not subject to bona fide dispute); In re Drexler, 56 B.R. 960 (Bankr.S.D.N.Y.1986) (claim based on unstayed judgment pending appeal was not subject to bona fide dispute); cf. Concrete Pumping Service, Inc. v. King Construction Co. (In re Concrete Pumping Service, Inc.), 943 F.2d 627, 629 (6th Cir.1991) (noting that contested involuntary bankruptcy petition did not involve a bona fide dispute as petitioner’s claim had been reduced to judgment prepetition). Most importantly, these prepetition judgments are res judicata under Ohio law. See Columbus v. Alden E. Stilson & Associates, 90 Ohio App.3d 608, 630 N.E.2d 59 (1993) (consent judgment had res judicata effect), mot’n cert. overruled, 68 Ohio St.3d 1461, 627 N.E.2d 1002 (1994); Crowe v. Riley, 63 Ohio St. 1, 57 N.E. 956, 957 (1900) (court erred in failing to" }, { "docid": "5482547", "title": "", "text": "and recognized case of In re Lough, 57 B.R. 993 (Bankr.E.D.Mich.1986). . E.g., In re Sims, 994 F.2d 210, 221 (5th Cir.1993); B.D.W. Assoc., Inc. v. Busy Beaver Bldg. Centers, Inc., 865 F.2d 65, 66-67 (3d Cir.1989); In re Busick, 831 F.2d 745, 750 (7th Cir.1987); In re Rimell, 946 F.2d 1363, 1365 (8th Cir.1991), cert. denied, Rimell v. Mark Twain Bank, 504 U.S. 941, 112 S.Ct. 2275, 119 L.Ed.2d 202 (1992); Bartmann v. Maverick Tube Corp., 853 F.2d 1540, 1544 (10th Cir.1988). See also In re Leach, 92 B.R. 483 (Bankr.D.Kan.1988), opinion amended, 102 B.R. 805 (Bankr.D.Kan.1989); In re B.B.S.I., Ltd., 81 B.R. 227, 230 (Bankr.E.D.N.Y.1988); In re Garland Coal & Mining Co., 67 B.R. 514, 521 (Bankr.W.D.Ark.1986). . E.g., In re Raymark Industries, Inc., 99 B.R. 298, 300 (Bankr.E.D.Pa.1989) (unstayed judgment not subject to a bona fide dispute; stayed judgment would still be subject to bona fide dispute); In re Drexler, 56 B.R. 960 (Bankr. S.D.N.Y.1986) (claim based on an unstayed judgment pending appeal was not subject to a bona fide dispute); In re Galaxy Boat Mfg. Co., 72 B.R. 200, 202 (Bankr.D.S.C.1986) (although the debt or appealed a default judgment entered in state court, the claim was not subject of a bona fide dispute); In re Smith, 123 B.R. 423, 424 (Bankr. M.D.Fla.1990), aff'd, 129 B.R. 262 (M.D.Fla.1991) (since the bank was holder of state court judgment against the debtor, the debt was not subject to a bona fide dispute); In re Schiliro, 64 B.R. 422, 425 (Bankr.E.D.Pa.1986) (claim against debtor had been reduced to a confessed judgment and was not contingent or subject to a bona fide dispute). See also Concrete Pumping Service, Inc. v. King Constr. Co., 943 F.2d 627, 629 (6th Cir.1991) (noting that contested involuntary petition did not involve a bona fide dispute as petitioner’s claim had been reduced to judgment pre-petition); In re Everett, 178 B.R. 132, 140 (Bankr.N.D.Ohio 1994) (unappealed, unstayed final judgment not subject to a bona fide dispute); In re Caucus Distributors, Inc., 83 B.R. 921, 928-29 (Bankr.E.D.Va.1988) (unstayed contempt fine not subject to a bona fide dispute). ." }, { "docid": "5872345", "title": "", "text": "curiam) (unpublished); In re Amanat, 321 B.R. 30, 37 (Bankr. S.D.N.Y.2005); In re Raymark Indus., Inc., 99 B.R. 298, 300 (Bankr.E.D.Pa.1989); In re Caucus Distribs., Inc., 83 B.R. 921, 929 (Bankr.E.D.Va.1988). Cases following this approach reason that it would be “contrary to the basic principles respecting, and would effect a radical alteration of, the long-standing enforceability of unstayed final judgments to hold that the pendency of the debtor’s appeal created a ‘bona fide dispute.’ ” In re AMC Investors, 406 B.R. at 484 (quoting In re Drexler, 56 B.R. at 967). The minority approach — the “Byrd ” rule — holds that, although “it will be the unusual case in which a bona fide dispute exists in the face of claims reduced to state court judgments!,] [s]uch judgments do not guarantee the lack of a bona fide dispute.” Platinum Fin. Servs. Corp. v. Byrd (In re Byrd), 357 F.3d 433, 438 (4th Cir.2004). Under the Byrd rule, the petitioning creditor makes a “prima facie” case of compliance with § 303(b)(1) by presenting an unstayed state judgment, but the debtor is given the opportunity nonetheless to demonstrate the existence of a bona fide dispute as to liability or the amount of the debt. Id. at 439; accord In re Henry S. Miller Commercial, LLC, 418 B.R. 912, 920-21 (Bankr.N.D.Tex.2009); In re Graber, 319 B.R. 374, 377-78 (Bankr.E.D.Pa. 2004); In re Prisuta, 121 B.R. 474, 476 (Bankr.W.D.Pa.1990); In re Tucker, No. 5:09-bk-914, 2010 WL 4823917, at *3 (Bankr.N.D.W.Va. Nov. 22, 2010); In re Briggs, Nos. 07-34534, 07-34533, 2008 WL 190463, at *2 (Bankr.N.D.Tex. Jan. 18, 2008). With appropriate deference to our sister circuit, we conclude that the Drexler rule is correct as a matter of both statutory interpretation and federalism. Section 303(b)(1) requires that a petitioning creditor hold a “claim” against the debtor. Under § 101(5)(A) of the Bank ruptcy Code, a “claim” is a “right to payment, whether or not such right is reduced to judgment.” 11 U.S.C. § 101(5)(A). Thus, a right to payment includes a “judgment.” Accordingly, the “claims” of the three Petitioning Creditors to which the “not in" }, { "docid": "20301173", "title": "", "text": "chilling effect on judgment creditors. 6. Applying Drexler’s Per Se Rule in the Context of a Sanctions Judgment Marciano emphasizes that the P.C. Judgments were entered after the Superi- or Court struck Marciano’s answers to the cross-complaints and entered his default. Marciano characterizes the P.C. Judgments as “default judgments” and proffers cases in which courts held that a default judgment may be the subject of a bona fide dispute. See, e.g., In re Henry S. Miller Commercial, LLC, 418 B.R. 912, 921 (Bankr.N.D.Tex.2009) (citing “a default judgment where facts were not actually litigated” as an example of a situation justifying an “inquiry into whether a bona fide dispute exists”); AMC Investors, 406 B.R. at 487 (declining to extend Drexler’s per se rule to default judgments); In re Graber, 319 B.R. 374, 379-80 (Bankr.E.D.Pa.2004) (same); Prisuta, 121 B.R. at 476 (concluding that judgments may be the subject of a bona fide dispute based in part on the fact that “no hearings at all were held prior to the entry of the judgments against alleged debtors”). Marciano’s categorization of the P.C. Judgments as “default judgments” misses the mark. Unlike the default judgments discussed in Miller Commercial, AMC Investors, Graber, and Prisuta, the discovery-sanctions imposed against Marciano did not result from his mere failure to appear. On the contrary, Marciano was actively participating in the litigation before the Superior Court struck Marciano’s answers to the cross-complaints. As a result of his inappropriate and dilatory conduct, Marciano forfeited his opportunity to continue to litigate in the trial court. Consequently, Marciano’s situation is not comparable to that of the alleged debtors in Prisuta; in that case, “no hearings at all were held prior to the entry of the judgments against alleged debtors.” 121 B.R. at 476. In concluding that default judgments may be the subject of a bona fide dispute, Miller Commercial, AMC Investors, Gra-ber, and Prisuta endorse' the policy of deciding disputes on the merits. In the context of a sanctions judgment, the policy of deciding disputes on the merits justifies a per se rule that such judgments are not the subject of a" }, { "docid": "19302122", "title": "", "text": "Inc., 426 B.R. 375 (Bankr.D.Kansas 2010); In re Henry S. Miller Commercial, LLC., 418 B.R. 912, 920-23 (Bankr.N.D.Tex.2009); see also In re Prisuta, 121 B.R. 474 (Bankr.W.D.Pa.1990). While Byrd acknowledged the general enforceability of unstayed judgments, Byrd noted that nothing in § 303, or in the Bankruptcy Code as a whole, mandated that holders of unstayed final judgments be entitled to file involuntary petitions while their judgments are subject to appeal. As stated in Byrd, “the Code does not make the existence of a bona fide dispute depend on whether a claim has been reduced to judgment.” Id. After considering the underlying purpose of the bona fide dispute clause in § 303(b), to prevent creditors from coercing debtors into settlement of legitimately disputed claims based on the threat of involuntary bankruptcy, Byrd concluded that the per se rule was inappropriate. Rather, Byrd ruled that the unstayed final judgment was prima facie evidence that no bona fide dispute existed. The presumption arose upon presentation of the judgment, and the burden then shifted to the alleged debtor to demonstrate the existence of a bona fide dispute by presenting evidence of substantial legal or factual questions. Id. at 438-40. The controversy over the per se rule has continued after Byrd. The Delaware bankruptcy court in In re AMC Investors, LLC, 406 B.R. at 484-87, rejected Byrd and instead followed Drexler. AMC Investors offered several different grounds for rejecting Byrd. According to AMC Investors, Byrd’s approach “was unnecessarily intrusive into the trial court’s ruling and undermine[d] the objective analysis of bona fide disputes.” Id. at 485. AMC Investors further determined that Byrd required an analysis of the debtor’s asserted factual and legal issues that was difficult and unnecessary, and that Byrd’s analysis rendered “the entry of a judgment completely irrelevant in determining the existence of a claim.” Id. at 485-86. AMC Investors also asserted that Byrd conflicted with Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979), which held that the underlying rights of parties in bankruptcy cases generally are created and defined by applicable nonbankruptcy law. As" }, { "docid": "19302104", "title": "", "text": "See, e.g., In re AMC Investors, LLC, 406 B.R. at 487 (explicitly excludes default judgments from the scope of its ruling, preserving the issue for determination in an appropriate future dispute); In re Drexler, 56 B.R. at 964. Conversely, where a default judgment is involved, a bankruptcy court is unlikely to apply a per se rule in considering whether the underlying claim is in bona fide dispute. See, e.g., In re Starlite Houseboats, Inc., 426 B.R. 375 (Bankr.D.Kan.2010); In re Henry S. Miller Comm’l, LLC, 418 B.R. 912, 921 (Bankr.N.D.Tex.2009); In re Graber, 319 B.R. 374, 379-80 (Bankr.E.D.Pa.2004); In re Prisuta, 121 B.R. 474, 476 (Bankr. W.D.Pa.1990). Mr. Marciano contends even if a per se rule is appropriate to unstayed state court judgments entered on the merits, the bankruptcy court inappropriately applied the per se rule to the Petitioning Creditors’ judgments, which he characterizes as default judgments. The bankruptcy court ruled that the judgments at issue were not “default judgments” in the classic sense. Instead, they were judgments resulting from the imposition of discovery sanctions. They did not result from Mr. Marciano’s mere failure to appear in the state court litigation; they were the result of his “inappropriate and dilatory conduct” in that litigation. Marciano, 446 B.R. at 428. While acknowledging the policy considerations favoring resolution of disputes on the merits, the bankruptcy court stated that because terminating sanctions only are awarded against parties whose abuse of the discovery process continues notwithstanding the imposition of lesser sanctions, terminating sanctions “advance the truth-seeking function of litigation by prodding parties to fulfill their discovery obligations.” Id., citing Del Junco v. Hufnagel, 150 Cal.App.4th 789, 60 Cal.Rptr.3d 22, 29 (2007). The bankruptcy court held that a determination that a judgment based on terminating sanctions was subject to bona fide dispute would reward Mr. Marciano’s conduct which thwarted the policy of settling disputes on the merits. Marciano, 446 B.R. at 428. We agree that under the facts of this case, Mr. Marciano is estopped from asserting that the state court judgments are in bona fide dispute on the basis that he was precluded from" }, { "docid": "18531047", "title": "", "text": "183 B.R. 437, 450 (W.D.La.1995); see 2 Collier on Bankruptcy ¶ 303.08 (1995). In addition, such creditors must show that: (1) their claims are not contingent as to liability; (2) their claims are not the subject of a bona fide dispute; and (3) the aggregate amount of their claims is at least $10,000. 11 U.S.C. § 303(b); see 2 Collier on Bankruptcy ¶ 303.08 (1995). While courts differ on an exact definition of “bona fide dispute,” it clearly entails some genuine, existing conflict. Atlas Machine & Iron Works, Inc., 986 F.2d at 716. Moreover, a bona fide dispute exists when there is a genuine issue of material fact that bears upon the debtor’s liability or a meritorious contention as to the application of the law to the facts. In re Fox, 162 B.R. 729, 732 (Bankr.E.D.Va.1993); In re Caucus Distributors, Inc., 106 B.R. 890 (Bankr.E.D.Va.1989). A bona fide dispute must exist as to the validity of an entire claim and not merely some of the claim. Fox, 162 B.R. at 732. An unstayed or non-appealable final judgment is not subject to a bona fide dispute. In re Everett, 178 B.R. 132, 140 (Bankr.N.D.Ohio 1994); In re Smith, 123 B.R. 423, 425 (Bankr.M.D.Fla.1990); In re Raymark Industries, Inc. 99 B.R. 298, 300 (Bankr.E.D.Pa.1989); In re Caucus Distributors, Inc., 83 B.R. 921, 929 (Bankr.E.D.Va.1988); In re Drexler, 56 B.R. 960, 967 (Bankr.S.D.N.Y.1986); cf. Concrete Pumping Service, Inc. v. King Construction Co. (In re Concrete Pumping Service, Inc.), 943 F.2d 627, 629 (6th Cir.1991). In deciding whether a bona dispute exists, a court does not actually resolve the dispute. Subway Equipment Leasing Corporation v. Sims (In re Sims), 994 F.2d 210, 221 (5th Cir.1993); Rimell v. Mark Twain Bank (In re Rimell), 946 F.2d 1363, 1365 (8th Cir.1991); Bartmann v. Maverick Tube Corporation, 853 F.2d 1540, 1544 (10th Cir.1988); In re Busick, 831 F.2d 745, 750 (7th Cir.1987). Furthermore, mere fail ure of a creditor to demand payment of debt does not excuse failure of the debtor to pay the debt. In re Everett, 178 B.R. 132 (Bankr.N.D.Ohio 1994); In re West Side" }, { "docid": "5482548", "title": "", "text": "re Galaxy Boat Mfg. Co., 72 B.R. 200, 202 (Bankr.D.S.C.1986) (although the debt or appealed a default judgment entered in state court, the claim was not subject of a bona fide dispute); In re Smith, 123 B.R. 423, 424 (Bankr. M.D.Fla.1990), aff'd, 129 B.R. 262 (M.D.Fla.1991) (since the bank was holder of state court judgment against the debtor, the debt was not subject to a bona fide dispute); In re Schiliro, 64 B.R. 422, 425 (Bankr.E.D.Pa.1986) (claim against debtor had been reduced to a confessed judgment and was not contingent or subject to a bona fide dispute). See also Concrete Pumping Service, Inc. v. King Constr. Co., 943 F.2d 627, 629 (6th Cir.1991) (noting that contested involuntary petition did not involve a bona fide dispute as petitioner’s claim had been reduced to judgment pre-petition); In re Everett, 178 B.R. 132, 140 (Bankr.N.D.Ohio 1994) (unappealed, unstayed final judgment not subject to a bona fide dispute); In re Caucus Distributors, Inc., 83 B.R. 921, 928-29 (Bankr.E.D.Va.1988) (unstayed contempt fine not subject to a bona fide dispute). . Bankruptcy Act of 1898 § 3(a). Generally, such acts included fraudulent conveyances, preferences, avoidable judicial liens, etc. The rationale for this requirement was that the debtor should not be forced in bankruptcy simply because it was short of money. See Cook v. Tullis, 85 U.S. (18 Wall.) 332, 340, 21 L.Ed. 933 (1873). Thus, bankruptcy relief was afforded only if general bankruptcy policies were somehow undermined. . Cases under the Bankruptcy Act of 1898 looked to the debtor's “inability” to pay under § 3(a)(6). See also Notes of Committee on the Judiciary, S.Rep. No. 95-989, 95th Cong., 2d Sess. 34 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. . E.g., Bartmann v. Maverick Tube Corp., 853 F.2d 1540, 1546 (10th Cir.1988); Paroline v. Doling, 116 B.R. 583, 585 (Bankr.S.D.Ohio 1990). See also In re Petro Fill, Inc., 144 B.R. 26 (Bankr.W.D.Pa.1992); In re Smith, 123 B.R. 423 (Bankr.M.D.Fla.1990), aff'd, 129 B.R. 262 (M.D.Fla.1991); In re Molen Drilling Co., 68 B.R. 840 (Bankr.D.Mont.1987); In re CLE Corp., 59 B.R. 579 (Bankr.N.D.Ga.1986). . Notes of Committee on" }, { "docid": "20235643", "title": "", "text": "the state court judgment was taken in error and will be reversed by the Dallas court of appeals, making it subject to bona fide dispute. The majority of decisions analyzing this issue have found that final judgments from state courts that have not been stayed on appeal are not subject to bona fide dispute. In re AMC Investors, LLC, 406 B.R. 478, 484 (Bankr.D.Del.2009) (citing In re Norris, 1997 WL 256808, at *5 (5th Cir.1997) (per curiam), In re Euro-American Lodging Corp., 357 B.R. 700, 712; In re Amanat, 321 B.R. 30, 37 (Bankr.S.D.N.Y.2005); In re Raymark Indus., 99 B.R. 298, 300 (Bankr.E.D.Pa.1989)); see also In re Everett, 178 B.R. 132, 140 (Bankr.N.D.Ohio 1994) (unappealed, unstayed final judgments not subject to bona fide dispute); In re Smith, 123 B.R. 423, 425 (Bankr.M.D.Fla.1990) (claim based on judgment not subject of bona fide dispute), aff'd, 129 B.R. 262 (M.D.Fla.1991); In re Drexler, 56 B.R. 960, 967 (Bankr.S.D.N.Y.1986). In an unpublished decision, the Fifth Circuit has held that final judgment that has not been stayed is not subject to a bona fide dispute for the purposes of section 303(b)(1) and 303(h)(1). In re Norris, 1997 WL 256808, 114 F.3d 1182 (5th Cir.1997), cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266. Citing the objective test in Sims, the Fifth Circuit said that “[t]o hold otherwise would require the bankruptcy court to review the state court judgment in order to predict [the alleged debtor’s] chance of success on appeal (which would be particularly troubling in that a state court judgment is at issue), and would undermine the objective standard adopted in Sims.” Id. Mr. Smith asserts that there is no per se rule that a final unstayed judgment cannot be subject to bona fide dispute, citing a Fourth Circuit decision, and saying that the bankruptcy court must therefore determine the likelihood of Mr. Smith’s success on appeal. See In re Byrd, 357 F.3d 433 (4th Cir.2004) (court making determination of bona fide dispute of a state court judgment on appeal is required to conduct a derivative inquiry into the likelihood of success" }, { "docid": "18590", "title": "", "text": "judgment entered in a state court proceeding is a non-contingent claim that is not the subject of a bona fide dispute for purposes of an involuntary petition, citing to Norris, supra; In re Smith, 123 B.R. 423 (Bankr.M.D.Fla.1990) and In re Schiliro, 64 B.R. 422 (Bankr.E.D.Pa.1986). Supplemental Brief in Support of Petitioner’s Request for Entry of Order for Relief at 2. I agree that evidence of these unstayed judgments has met Petitioners’ burden. However, agreeing with the Fourth Circuit in the Byrd case, this conclusion does not end the analysis. I am not persuaded that the cases cited by Petitioners for the proposition that an unstayed judgment, even if being challenged by appeal or as here by a motion to open or strike, can never be the subject of a bona fide dispute. Rather the burden then shifts to the Debtor to demonstrate the existence of a bona fide dispute. The Debtor responds that a creditor that holds a stayed judgment holds a claim that is subject to bona fide dispute, citing In re Raymark Industries, Inc., 99 B.R. 298 (Bankr.E.D.Pa.1989). Memorandum of Jennifer Graber at 3. This argument belies the facts of the case since there is simply no evidence that the Petitioners’ judgments have been stayed. Not surprisingly, the Petitioners respond that the 10 day stay of a federal judgment such as the one entered in Raymark is distinguishable. Although Mrs. Graber’s argument is flawed by the erroneous premise it advances, it does not follow that the unique facts of this case may not give rise to a further exception from the general rule articulated in Drexler. In In re Prisuta, 121 B.R. 474 (Bankr.W.D.Pa.1990), the court found no fault with the general principle that a claim based on an unstayed judgment as to which an appeal was pending was not subject to bona fide dispute but found it inappropriate to apply in that case. Prisuta involved two default judgments and one taken by confession. The Prisuta court observed that few cases have dealt with the question of whether a claim which arises out of a judgment is" }, { "docid": "19302121", "title": "", "text": "represented by an unstayed final judgment never can be the subject of a bona fide dispute, even if subject to a pending appeal. Id. at 967. Drexler reasoned that precluding judgment creditors from filing involuntary petitions merely based on the pendency of an appeal would render involuntary petitions out of step with other debt collection remedies, because these other remedies may be utilized by holders of unstayed final judgments, even while their judgments are subject to appeals. Id. In Drexler’s own words: It would be contrary to the basic principles respecting, and would effect a radical alteration of, the long-standing enforceability of unstayed final judgments to hold that the pendency of the debtor’s appeal created a “bona fide dispute” within the meaning of Code § 303. Id. (footnote omitted). While several other courts have adopted Drexler’s per se rule, the Fourth Circuit Court of Appeals rejected it as unpersuasive. Platinum Fin. Serv. Corp. v. Byrd (In re Byrd), 357 F.3d 433, 438 (4th Cir.2004). Other courts are in accord. See e.g., In re Starlite Houseboats, Inc., 426 B.R. 375 (Bankr.D.Kansas 2010); In re Henry S. Miller Commercial, LLC., 418 B.R. 912, 920-23 (Bankr.N.D.Tex.2009); see also In re Prisuta, 121 B.R. 474 (Bankr.W.D.Pa.1990). While Byrd acknowledged the general enforceability of unstayed judgments, Byrd noted that nothing in § 303, or in the Bankruptcy Code as a whole, mandated that holders of unstayed final judgments be entitled to file involuntary petitions while their judgments are subject to appeal. As stated in Byrd, “the Code does not make the existence of a bona fide dispute depend on whether a claim has been reduced to judgment.” Id. After considering the underlying purpose of the bona fide dispute clause in § 303(b), to prevent creditors from coercing debtors into settlement of legitimately disputed claims based on the threat of involuntary bankruptcy, Byrd concluded that the per se rule was inappropriate. Rather, Byrd ruled that the unstayed final judgment was prima facie evidence that no bona fide dispute existed. The presumption arose upon presentation of the judgment, and the burden then shifted to the alleged debtor" }, { "docid": "5872343", "title": "", "text": "certification that he either lived at or regularly conducted business there, see Cal. Corp. Code § 1502(b), and the bankruptcy court therefore did not err in denying the motion to dismiss. III. Marciano’s second argument, however, requires more extended discussion. He contends that, because the judgments obtained by the Petitioning Creditors were on appeal when the involuntary petition was filed, the bankruptcy court should have dismissed the petition as not meeting the requirements of § 303(b)(1) of the Bankruptcy Code. Under § 303(b)(1), an involuntary bankruptcy may be commenced against a debtor by the filing of a petition by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute as to liability or amount, or an indenture trustee representing such a holder, if such noncontin- gent, undisputed claims aggregate at least $14,425 more than the value of any lien on property of the debtor securing such claims held by the holders of such claims[J 11 U.S.C. § 303(b)(1) (footnote omitted). The bankruptcy court and the BAP successively held that an unstayed non-default state judgment is a claim not in bona fide dispute as to liability or amount under § 303(b)(1). In re Marciano, 446 B.R. at 422; In re Marciano, 459 B.R. at 54-55. Because the issue turns on interpretation of the Bankruptcy Code, we review those holdings de novo. Temecula v. LPM Corp. (In re LPM Corp.), 300 F.3d 1134, 1136 (9th Cir.2002). Perhaps because the Bankruptcy Code does not define “bona fide dispute,” interpretation of § 303(b)(1) has divided courts. The majority view — the “Drexler ” rule — is that unstayed non-default state judgments on appeal are not subject to bona fide dispute for purposes of § 303(b)(1). In re Drexler, 56 B.R. 960, 967 (Bankr.S.D.N.Y.1986); accord In re AMC Investors, LLC, 406 B.R. 478, 487 (Bankr.D.Del.2009); Norris v. Johnson (In re Norris), 1997 WL 256808, at *5, 114 F.3d 1182 (5th Cir.1997); In re Euro-Am. Lodging Corp., 357 B.R. 700, 712 (Bankr. S.D.N.Y.2007) (per" }, { "docid": "5872344", "title": "", "text": "claims[J 11 U.S.C. § 303(b)(1) (footnote omitted). The bankruptcy court and the BAP successively held that an unstayed non-default state judgment is a claim not in bona fide dispute as to liability or amount under § 303(b)(1). In re Marciano, 446 B.R. at 422; In re Marciano, 459 B.R. at 54-55. Because the issue turns on interpretation of the Bankruptcy Code, we review those holdings de novo. Temecula v. LPM Corp. (In re LPM Corp.), 300 F.3d 1134, 1136 (9th Cir.2002). Perhaps because the Bankruptcy Code does not define “bona fide dispute,” interpretation of § 303(b)(1) has divided courts. The majority view — the “Drexler ” rule — is that unstayed non-default state judgments on appeal are not subject to bona fide dispute for purposes of § 303(b)(1). In re Drexler, 56 B.R. 960, 967 (Bankr.S.D.N.Y.1986); accord In re AMC Investors, LLC, 406 B.R. 478, 487 (Bankr.D.Del.2009); Norris v. Johnson (In re Norris), 1997 WL 256808, at *5, 114 F.3d 1182 (5th Cir.1997); In re Euro-Am. Lodging Corp., 357 B.R. 700, 712 (Bankr. S.D.N.Y.2007) (per curiam) (unpublished); In re Amanat, 321 B.R. 30, 37 (Bankr. S.D.N.Y.2005); In re Raymark Indus., Inc., 99 B.R. 298, 300 (Bankr.E.D.Pa.1989); In re Caucus Distribs., Inc., 83 B.R. 921, 929 (Bankr.E.D.Va.1988). Cases following this approach reason that it would be “contrary to the basic principles respecting, and would effect a radical alteration of, the long-standing enforceability of unstayed final judgments to hold that the pendency of the debtor’s appeal created a ‘bona fide dispute.’ ” In re AMC Investors, 406 B.R. at 484 (quoting In re Drexler, 56 B.R. at 967). The minority approach — the “Byrd ” rule — holds that, although “it will be the unusual case in which a bona fide dispute exists in the face of claims reduced to state court judgments!,] [s]uch judgments do not guarantee the lack of a bona fide dispute.” Platinum Fin. Servs. Corp. v. Byrd (In re Byrd), 357 F.3d 433, 438 (4th Cir.2004). Under the Byrd rule, the petitioning creditor makes a “prima facie” case of compliance with § 303(b)(1) by presenting an unstayed state" }, { "docid": "19302103", "title": "", "text": "in AMC Investors and the majority of courts that have considered the issue, including the bankruptcy court in this case, that an unstayed judgment, other than a default judgment, that is regular on its face, is “in and of itself, sufficient to establish that the claim underlying the judgment is not in bona fide dispute for purposes of determining whether a petitioning creditor is eligible” to initiate an involuntary bankruptcy case. In re AMC Investors, LLC, 406 B.R. at 487. See also C.W. Mining Co. v. Aguila, Inc. (In re C.W. Mining Co.), 431 B.R. 307, 2009 WL 4798264 *5 (10th Cir. BAP 2009) (“This Court declines to adopt the Byrd approach for the reasons so articulately and convincingly set forth by the Delaware Bankruptcy Court in In re AMC Investors, LLC.”), rev’d on other grounds, 636 F.3d 1257 (10th Cir.2011). 2. The State Court Judgments Are Not Default Judgments. The courts that have adopted the general rule that unstayed state court judgments are not in bona fide dispute have not dealt with default judgments. See, e.g., In re AMC Investors, LLC, 406 B.R. at 487 (explicitly excludes default judgments from the scope of its ruling, preserving the issue for determination in an appropriate future dispute); In re Drexler, 56 B.R. at 964. Conversely, where a default judgment is involved, a bankruptcy court is unlikely to apply a per se rule in considering whether the underlying claim is in bona fide dispute. See, e.g., In re Starlite Houseboats, Inc., 426 B.R. 375 (Bankr.D.Kan.2010); In re Henry S. Miller Comm’l, LLC, 418 B.R. 912, 921 (Bankr.N.D.Tex.2009); In re Graber, 319 B.R. 374, 379-80 (Bankr.E.D.Pa.2004); In re Prisuta, 121 B.R. 474, 476 (Bankr. W.D.Pa.1990). Mr. Marciano contends even if a per se rule is appropriate to unstayed state court judgments entered on the merits, the bankruptcy court inappropriately applied the per se rule to the Petitioning Creditors’ judgments, which he characterizes as default judgments. The bankruptcy court ruled that the judgments at issue were not “default judgments” in the classic sense. Instead, they were judgments resulting from the imposition of discovery sanctions." }, { "docid": "17484287", "title": "", "text": "stick. Sims, 994 F.2d at 220-21. The Fifth Circuit in Sims elaborated that a petitioning creditor has the burden of proof of establishing a prima facie case that no bona fide dispute exists with respect to its claim. Then, the burden shifts to the alleged debtor to present evidence demonstrating that a bona fide dispute exists. Id. at 221. Presumably, having a judgment goes a long way toward establishing a claim not subject to a bona fide dispute. In re Byrd, 357 F.3d 433, 438 (4th Cir.2004) (finding that “judgments go a long way toward establishing the absence of a bona fide dispute” and that “it will be the unusual case in which a bona fide dispute exists in the face of claims reduced to state court judgments”). (Note that Sims did not involve a petitioning creditor with a judgment.) So the question is whether an unstayed judgment (even if it is on appeal) essentially creates an irrebuttable presumption of no bona fide dispute? In other words, is there anything an alleged debtor can do, from a proof-standpoint, to present evidence of a bona fide dispute as to liability or amount when there is an unstayed judgment? Most courts essentially hold no. See, e.g., In re Drexler, 56 B.R. 960 (Bankr.S.D.N.Y.1986); In re Caucus Distrib., Inc., 83 B.R. 921 (Bankr.E.D.Va.1988); In re Euro-American Lodging Corp., 357 B.R. 700 (Bankr.S.D.N.Y.2007); In re Huggins, 380 B.R. 75 (Bankr.M.D.Fla.2007); In re C.W. Mining, Co., 2008 WL 4279635 (Bankr.D.Utah 2008) (not reported in B.R.). See also In re Smith, 415 B.R. 222 (Bankr.N.D.Tex. Sept.3, 2009) (Hale, J.). But this court views this, first, as arguably inconsistent with the literal wording of the statute. The statute could have referred to holders of judgments in Section 303(b), but, instead, Section 303(b) uses a more amorphous and flexible concept, by referring to claims “not the subject to a bona fide dispute as to liability or amount.” Again, the Fifth Circuit in Sims, indicated that an objective standard should be used in analyzing whether there is a bona fide dispute-in other words, courts should not simply rely on" }, { "docid": "16466204", "title": "", "text": "view, see, e.g., In re Norris, 183 B.R. 437, 452-54 & n. 17 (Bankr.W.D.La.1995) (unstayed, appealed judgment not subject to bona fide dispute); In re Galaxy Boat Mfg. Co. Inc., 72 B.R. 200, 202 (Bankr.D.S.C.1986) (same); In re Drexler, 56 B.R. 960, 967-68 (Bankr.S.D.N.Y.1986) (same), but it is a view that we find unpersuasive. While we recognize the general enforceability of unstayed judgments, see, e.g., Drexler, 56 B.R. at 967-68, the text of the Bankruptcy Code establishes no such hard-and-fast rule. Section 303(b) prohibits a creditor from filing an involuntary petition if the creditor’s “claim” is “the subject of a bona fide dispute.” 11 U.S.C. § 303(b). Section 101(5) then defines a “claim” in part as a “right to payment, whether or not such right is reduced to judgment.” Id. § 101(5)(A) (emphasis added). In other words, the Code does not make the existence of a bona fide dispute depend on whether a claim has been reduced to judgment. It permits some creditors who have not reduced then-claims to judgment to file involuntary petitions, just as it prevents other creditors who have reduced their claims to judgment from filing. After all, the purpose of the “bona fide dispute” provision is to prevent creditors from using involuntary bankruptcy “to coerce a debtor to satisfy a judgment even when substantial questions may remain concerning the liability of the debt- or.” In re Prisuta, 121 B.R. 474, 476 (Bankr.W.D.Pa.1990); see also In re Lough, 57 B.R. 993, 997 (Bankr.E.D.Mich.1986). Yet substantial questions may remain about a debtor’s liability, notwithstanding judgments in a creditor’s favor. In the present case, Maryland trial courts ruled in Platinum’s favor on particular factual or legal questions. These judgments go a long way toward establishing the absence of a bona fide dispute. Indeed it will be the unusual case in which a bona fide dispute exists in the face of claims reduced to state court judgments. Such judgments do not guarantee the lack of a bona fide dispute, however, especially absent rulings by Maryland appellate courts or in the face of contrary rulings by other Maryland trial courts. As" }, { "docid": "20235642", "title": "", "text": "286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)). A. Bona Fide Dispute The Bankruptcy Code does not define “bona fide dispute.” The Fifth Circuit has held that a debt is the subject of a bona fide dispute when “there is an objective basis for either a factual or legal dispute as to the validity of the debt.” In re Sims, 994 F.2d 210, 220 (5th Cir.1993), cert. denied sub nom. Sims v. Subway Equipment Leasing Corp., 510 U.S. 1049, 114 S.Ct. 702, 126 L.Ed.2d 669 (1994). “Because the standard is objective, neither the debtor’s subjective intent nor his subjective belief is sufficient to meet this burden.” Id. at 221. Rhodes’ claim consists of a final judgment from the state court against Mr. Smith that has not been stayed on appeal. See Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex.1986) (holding that a judgment is final for the purposes of res judicata and collateral estoppel despite the taking of an appeal, unless the appeal consists of a trial de novo). Mr. Smith argues that the state court judgment was taken in error and will be reversed by the Dallas court of appeals, making it subject to bona fide dispute. The majority of decisions analyzing this issue have found that final judgments from state courts that have not been stayed on appeal are not subject to bona fide dispute. In re AMC Investors, LLC, 406 B.R. 478, 484 (Bankr.D.Del.2009) (citing In re Norris, 1997 WL 256808, at *5 (5th Cir.1997) (per curiam), In re Euro-American Lodging Corp., 357 B.R. 700, 712; In re Amanat, 321 B.R. 30, 37 (Bankr.S.D.N.Y.2005); In re Raymark Indus., 99 B.R. 298, 300 (Bankr.E.D.Pa.1989)); see also In re Everett, 178 B.R. 132, 140 (Bankr.N.D.Ohio 1994) (unappealed, unstayed final judgments not subject to bona fide dispute); In re Smith, 123 B.R. 423, 425 (Bankr.M.D.Fla.1990) (claim based on judgment not subject of bona fide dispute), aff'd, 129 B.R. 262 (M.D.Fla.1991); In re Drexler, 56 B.R. 960, 967 (Bankr.S.D.N.Y.1986). In an unpublished decision, the Fifth Circuit has held that final judgment that has not been stayed is not subject" }, { "docid": "5872346", "title": "", "text": "judgment, but the debtor is given the opportunity nonetheless to demonstrate the existence of a bona fide dispute as to liability or the amount of the debt. Id. at 439; accord In re Henry S. Miller Commercial, LLC, 418 B.R. 912, 920-21 (Bankr.N.D.Tex.2009); In re Graber, 319 B.R. 374, 377-78 (Bankr.E.D.Pa. 2004); In re Prisuta, 121 B.R. 474, 476 (Bankr.W.D.Pa.1990); In re Tucker, No. 5:09-bk-914, 2010 WL 4823917, at *3 (Bankr.N.D.W.Va. Nov. 22, 2010); In re Briggs, Nos. 07-34534, 07-34533, 2008 WL 190463, at *2 (Bankr.N.D.Tex. Jan. 18, 2008). With appropriate deference to our sister circuit, we conclude that the Drexler rule is correct as a matter of both statutory interpretation and federalism. Section 303(b)(1) requires that a petitioning creditor hold a “claim” against the debtor. Under § 101(5)(A) of the Bank ruptcy Code, a “claim” is a “right to payment, whether or not such right is reduced to judgment.” 11 U.S.C. § 101(5)(A). Thus, a right to payment includes a “judgment.” Accordingly, the “claims” of the three Petitioning Creditors to which the “not in bona fide dispute” screen of § 303(b)(1) applies are the three unstayed California judgments, not the underlying tort claims of defamation or slander. Under California law, these judgments, in the absence of a stay pending appeal, were plainly not contingent as to liability or amount. Rather, the Petitioning Creditors were entitled to immediate payment of those claims in the amounts set by the superior court judgments. See Cal.Civ. Proc.Code § 917.1(a)(1). The Petitioning Creditors thus had fully vested property interests in these claims under California law. See Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979) (noting that property interests in bankruptcy proceedings are typically defined by state law). Although conceding that the Petitioning Creditors were free under California law to collect the amounts owed under the judgments at the time the involuntary petition was filed, Marciano nonetheless claims that the bankruptcy court should have evaluated the merits of the pending appeals before determining that the claims were not in bona fide dispute. His argument relies heavily on Liberty" } ]

[ { "docid": "1133778", "title": "", "text": "ORDER MYRON L. GORDON, District Judge. After the plaintiff and the defendant submitted a stipulation and order for dismissal, I issued an order dated October 3, 1974, expressing the view that members of the class alleged in the complaint were entitled to notice of the application for dismissal. I requested counsel for both parties to submit their views as to how such notice should be accomplished. Each party has complied with the October 3,1974, order. Both parties continue to oppose my view that notice of a proposed settlement pursuant to Rule 23(e), Federal Rules of Civil Procedure, must be given to members of a class which is alleged to exist in the complaint but which has not yet been certified under Rule 23(c), Federal Rules of Civil Procedure. There is also strong disagreement concerning who shall bear the cost of the notice. I conclude that notice is required and that it should be given at the defendant’s expense. In a letter to the court dated February 13, 1975, counsel for the plaintiff urges that Rule 23(e), Federal Rules of Civil Procedure, is not applicable until a class action is certified as such under Rule 23(c). The plaintiff relies on the following language in Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 557, 42 L.Ed.2d 532, n. 8 (1975): “The certification of a suit as a class action has important consequences for the unnamed members of the class. . Once the suit is certified as a class action, it may not be settled or dismissed without the approval of the court. Rule 23(e).” While I recognize its apparent applicability, I find nothing in the above quotation which is actually inconsistent with the views I stated in the October 3, 1974, order; in my opinion, the Supreme Court’s observation that notice is required after certification intimates no view on the more difficult question presented by this case: is notice of a compromise also required before a class action certification? I remain convinced that notice to the alleged class members is mandated by Rule 23(e). Each party insists that the other" } ]

[ { "docid": "22864036", "title": "", "text": "ment can be made that the absolute notice requirement of Rule 23(e) should not apply. However, most of the early decisions rejected this contention and held that a putative class action must be assumed to be a class action under Rule 23(e) and therefore notice was required. Wallican v. Waterloo Community School District, 80 F.R.D. 492 (N.D. Iowa 1978); Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61 (S.D.Tex.1977); Duncan v. Goodyear Tire & Rubber Co., 66 F.R.D. 615 (E.D.Wis.1975); Rotzenburg v. Neenah Joint School District, 64 F.R.D. 181 (E.D. Wis.1974); Held v. Missouri Pacific Railroad Co., 64 F.R.D. 346 (S.D.Tex.1974); Muntz v. Ohio Screw Products, 61 F.R.D. 396 (N.D.Ohio 1973); Washington v. Wyman, 54 F.R.D. 266 (S.D.N.Y.1971); Rothman v. Gould, 52 F.R.D. 494 (S.D.N.Y.1971); Yaffe v. Detroit Steel Corp., 50 F.R.D. 481 (N.D.Ill.1970); Gaddis v. Wyman, 304 F.Supp. 713 (S.D.N.Y.1969); Philadelphia Electric Co. v. Anaconda American Brass Co., 42 F.R.D. 324 (E.D.Pa.1967). The purposes to be served by the imposition of Rule 23(e) requirements to putative class actions are twofold. First, it protects the class defendant from plaintiffs who append a class claim merely to strengthen their bargaining power in settlement discussions. Requiring that Rule 23(e) notice be sent out deters the filing and alleging of frivolous class actions — that is, the time and cost of effecting the notice requirement make a plaintiff consider carefully the consequences of filing a class claim. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 548, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949); Rothman v. Gould, 52 F.R.D. 494, 496 (S.D.N.Y.1971). In addition to this institutional or defendant’s concern, requiring notice to putative class members also insures that the putative class members’ interests will be protected. This prejudice might occur in spite of the fact that the putative class members are not barred by res judicata. Shelton v. Pargo, Inc., 582 F.2d 1298, 1311 (4th Cir. 1978). Note, Developments in the Law — Class Actions, 89 Harv.L.Rev. 1318, 1541-42 (1976) [hereinafter cited as Developments]. A settlement of the class action could affect the putative class in several ways — the settlement may" }, { "docid": "3844001", "title": "", "text": "Detroit Steel Corp., 50 F.R.D. 481, 483 (M.D.Ill.1970); Gaddis v. Wyman, 304 F.Supp. 713, 715 (S.D.N.Y. 1969); Philadelphia Electric Co. v. Anaconda American Brass Co., 42 F.R.D. 324, 326 (E.D.Pa.1967). C. Approval of Dismissal Under Rule 23(e) Second, having held that the provisions of Rule 23(e) apply to this pre-class-certification motion, I must determine whether I should approve this voluntary dismissal under the standards of that rule. In making this determination, I have been guided by the thoughtful analysis provided by Professor Arthur R. Miller: One other saving grace to this embracive reading of Rule 23(e) is that when the settlement [or dismissal] occurs during the pre-certification period, particularly very early in the action, such as before answer or discovery on the Rule 23(c)(1) question, the judicial inquiry under subdivision (e) can be much more modest than it typically is after certification. This approach seems proper because the settlement [or dismissal] often is in the nature of a discontinuance of the class action status of the case and it is unlikely that other class members will have detrimentally relied on its institution. All the court need require is a demonstration by the attorneys that no one will be prejudiced by removing the class allegations. But it is important that the court press the lawyers on this and perhaps make a record of their representations. A. Miller, An Overview of Federal Class Actions: Past, Presént, and Future (Federal Judicial Center Monograph 1977). Other courts considering approvals of voluntary dismissals in the pre-elass-certification stage have adopted similar inquiries. These decisions focus on the underlying policies of rule 23(e) to glean the relevant considerations to weigh before approving a voluntary dismissal. Particularly persuasive and useful is the Fourth Circuit’s analysis: In weighing whether to require a certification determination and notice under the foregoing rule, the District Court “should focus primarily on the possibility that the pre-certification compromise is the product of collusion.” [Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61, 67 (S.D.Tex.1977).] The rationale for thus giving “less weight” to the possibility of prejudice to absent putative class members in the pre-certification context" }, { "docid": "23241964", "title": "", "text": "the sole adequate representative of the black male class members, plaintiffs’ counsel requested that the absent class members be informed of the fact that their sole representative had decided to drop his claim. However, the trial court refused to allow the requested notice. I believe that this was error and that the district court should have allowed notice for the absent male class members, informing them that their representative had decided to drop his (and their) action. F.R.Civ.P. 23(e) provides that “.. . a class action shall not be dismissed or compromised without the approval of the Court, and notice of the proposed dismissal shall be given to all members of the class ...” (emphasis added). One “purpose of [Rule 23(e)] is to protect the nonparty members of the class . .. when the representatives become fainthearted before the action is adjudicated.” Wright and Miller, Federal Practice and Procedure § 1797. I believe that there is no question but that the mandatory notice requirement of Rule 23(e) was triggered in this case and that the trial court erred in failing to provide notice to the soon-to-be-excluded absentee class members. Once a plaintiff class has been certified, the provisions of Rule 23(e) become applicable. As the Majority correctly notes, ante, at 812, the notice requirement set forth in Rule 23(e) is mandatory. Sagers v. Yellow Freight Systems, Inc., 68 F.R.D. 686 (N.D.Ga.1975); Duncan v. Goodyear Tire & Rubber Co., 66 F.R.D. 615 (E.D.Wis.1975); Rotzenburg v. Neenah Joint School District, 64 F.R.D. 181 (E.D.Wis.1974); Muntz v. Ohio Screw Products, 61 F.R.D. 396 (N.D.Ohio 1973); Washington v. Wyman, 54 F.R.D. 266 (S.D.N.Y.1971). However, the Majority has asserted that Mr. Williams’ withdrawal as class representative and the resultant exclusion of black males from the plaintiff class did not constitute a “dismissal” within the meaning of Rule 23(e). Ante, at 812, n.14. Thus, the Majority concludes that Mr. Williams’ departure and the exclusion of black males did not trigger the mandatory notice requirement. I must take exception to this conclusion. When Mr. Williams withdrew from the action, his departure was arranged through the use of" }, { "docid": "17132024", "title": "", "text": "Rule 23(e) has been presented prior to a determination on the validity of the class action, courts have presumed the viability of the class action. For example, Pearson v. Ecological Science Corp., 522 F.2d 171, 177 (5th Cir. 1975); Burgener v. California Adult Authority, 407 F.Supp. 555, 560 (N.D.Cal.1976) (three-judge court). Here, this court had previously determined that there is a viable class, but subsequent to that determination, the motion for certification of the class was withdrawn. It would seem equitable in this case that we assume that there was a viable class, as previously determined. But the Bantolinas’ withdrawal of their motion negates the court’s prior determination that the class action is viable. 1. Class action Federal Rule of Civil Procedure 23(c)(1) requires that “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” The court had made that determination in this case in its August 26 decision. There has been, however, a significant change in the representation of the class. Since the Bantolinas no longer represent the class, the court must again determine whether the action is maintainable as a class action. The Bantolinas’ withdrawal of their motion to certify the class places the court in a pre-certification posture. Other courts have applied Rule 23(e) prior to certification of the class. For example, Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61 (S.D.Tex.1977); Rotzenburg v. Neenah Joint School District of Winnebago County, 64 F.R.D. 181 (E.D.Wis.1974); Rothman v. Gould, 52 F.R.D. 494 (S.D.N.Y.1971). See Philadelphia Electric Co. v. Anaconda Brass Co., 42 F.R.D. 324 (E.D.Pa.1967). These courts may have presumed that a class action was proper. Here there is a major defect in the class action; there is no representative of the class. This action is therefore not maintainable as a class action. A class must exist, whether by presumption or fact, before Rule 23(e) is applicable. Pearson, 522 F.2d at 177; Beaver Associates v. Cannon, 59 F.R.D. 508, 510 (S.D.N.Y.1973); Berger v. Purolator Products, Inc., 41 F.R.D. 542, 544-45 (S.D.N.Y.1966);" }, { "docid": "20593658", "title": "", "text": "sustained an injury or loss because she traveled to the site listed in the pre-sale notice to view the sale of her car, but was denied entry because she did not have the undisclosed $1,000 refundable cash deposit. However, nowhere in her complaint does Gardner allege that she would not have traveled to the site had the $1,000 deposit requirement been disclosed. Without this causal link, she too has failed to state a claim. V. Finally, Gardner and Scott challenge the district court’s denial of their motion under Rule 23(d)(1)(B) of the Federal Rules of Civil Procedure for notice to putative class members. We review that decision for abuse of discretion. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 99-103, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981) (applying abuse-of-discretion review to a district court’s Rule 23(d) order restricting the ability of the named plaintiffs and their counsel to communicate with potential class members without advance judicial approval); Cruz v. Am. Airlines, Inc., 356 F.3d 320, 328 (D.C.Cir.2004) (reviewing for abuse of discretion the “district court’s decision not to order notice to [putative] class [members]”). Rule 23(d)(1)(B) states, “In conducting an action under this rule, the court may issue orders that: ... require — to protect class members and fairly conduct the action — giving appropriate notice to some or all class members.... ” Assuming for the sake of argument, as the district court did, that this rule permits notice to putative class members before a class has been certified, we find no abuse of discretion in the district court’s refusal to give notice. In a previous case discussing notice to putative class members after the named plaintiffs agree to a settlement, we observed that “unlike the situation in a certified class action, a ‘pre-certification dismissal does not legally bind absent class members,’ and, before certification, the absent putative class member has at best a mere ‘reliance interest,’ the strength of which will vary with the facts of the partic ular case.” Shelton v. Pargo, Inc., 582 F.2d 1298, 1314-15 (4th Cir.1978) (quoting Magana v. Platzer Shipyard, Inc., 74 F.R.D." }, { "docid": "22864035", "title": "", "text": "case is settled or dismissed. Most importantly, the settlement or dismissal of the case will be res judicata as to claims of the individual class members. Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S.Ct. 115, 118, 85 L.Ed. 22 (1940) (Stone, J.); 3B Moore’s Federal Practice, 1123.80[1] at 23-504 (3d ed. 1980). In the case where the claims are settled, important rights and remedies may be bargained away in the settlement process. Therefore, notice of the settlement is necessary as a matter of constitutional due process — an individual’s claim cannot be extinguished without notice and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950). After notification, class members can make a decision as to the proposed settlement — either choosing to be bound, objecting to, or eventually appealing the judgment. In a settlement entered without class certification the judgment will not have a res judicata effect on the claims of absent class members. Thus, a strong argu ment can be made that the absolute notice requirement of Rule 23(e) should not apply. However, most of the early decisions rejected this contention and held that a putative class action must be assumed to be a class action under Rule 23(e) and therefore notice was required. Wallican v. Waterloo Community School District, 80 F.R.D. 492 (N.D. Iowa 1978); Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61 (S.D.Tex.1977); Duncan v. Goodyear Tire & Rubber Co., 66 F.R.D. 615 (E.D.Wis.1975); Rotzenburg v. Neenah Joint School District, 64 F.R.D. 181 (E.D. Wis.1974); Held v. Missouri Pacific Railroad Co., 64 F.R.D. 346 (S.D.Tex.1974); Muntz v. Ohio Screw Products, 61 F.R.D. 396 (N.D.Ohio 1973); Washington v. Wyman, 54 F.R.D. 266 (S.D.N.Y.1971); Rothman v. Gould, 52 F.R.D. 494 (S.D.N.Y.1971); Yaffe v. Detroit Steel Corp., 50 F.R.D. 481 (N.D.Ill.1970); Gaddis v. Wyman, 304 F.Supp. 713 (S.D.N.Y.1969); Philadelphia Electric Co. v. Anaconda American Brass Co., 42 F.R.D. 324 (E.D.Pa.1967). The purposes to be served by the imposition of Rule 23(e) requirements to putative class actions are twofold. First, it protects the class" }, { "docid": "3844008", "title": "", "text": "all is required, where the dismissal will not result in any prejudice to the class. There is no question that the narrower interpretation, that the rule requirejs] mandatory notice to the class in all instances, will effectively enforce the policy of the rule, but it may also cause notice to issue unnecessarily when the spirit of Rule 23 is not violated, or force the court to employ unneeded alternative methods to circumvent the policy. Recently, courts have adopted a more enlightened approach, which avoids judicial waste of time and relieves the parties of the expense of notice when it is inappropriate. Each request for dismissal is examined according to its own circumstances, to determine whether it may violate the function of the rule. If neither loss of benefit to the class nor evidence of collusive agreement is present, notice of dismissal is unnecessary. H. Newberg, Class Actions §§ 4950, 4960, at 405-06 (1977). The clear majority of cases confronting this issue agree with Professor Newberg that rule 23(e) does not contain an absolute notice requirement. E.g., Shelton v. Fargo, Inc., 582 F.2d 1298 (4th Cir. 1978); Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61 (S.D.Tex.1977); Milonas v. Amerada Hess Corp., 25 Fed.R. Serv.2d 738 (S.D.N.Y.1977). Applying the teachings of Professor Newberg, and given my holding above that no prejudice to the class will result from approving plaintiff’s motion for voluntary dismissal, I hold that no notice to the absent class members is necessary on the facts of this case. Because the policies of rule 23(e) would not be served by ordering notice in this case, it would truly be exalting form over substance to force plaintiff to bear what is in my view a wholly unnecessary burden. In conclusion, following the detailed inquiry mandated by rule 23(e), I hold that plaintiff is entitled to a rule 41(a)(1) voluntary dismissal. An appropriate Order follows. . In addition to responding to plaintiffs motion for approval of voluntary dismissal, defendants filed their own substantive motion to dismiss pursuant to rule 12. This opinion concerns only plaintiffs motion for approval of voluntary dismissal. ." }, { "docid": "22864128", "title": "", "text": "court must hold a hearing to determine what claims are being settled, and whether absent putative class members would be prejudiced by the proposed settlement. “If, as a result of such hearing, the court is clearly satisfied that there has been no abuse of the class action device and no prejudice to absent putative class members, it may approve the settlement and dismissal without going through with a certification determination ... . ” Id. I would therefore reverse the trial court’s determination that the court lacked jurisdiction to approve the settlement compromising the claims of both the named plaintiffs and absent putative class members. Although I recognize that in most cases the class certification issue should be addressed by the district court prior to approval of a settlement and dismissal, see Susman v. Lincoln American Corp., 587 F.2d 866, 870 (7th Cir. 1978), the absence of a certification determination does not deprive the court of jurisdiction to approve a proposed settlement in a putative class action. Further, not only does the court have jurisdiction to approve a proposed settlement prior to certification, it has a duty to do so when the claims of the putative class are being compromised. See Wallican v. Waterloo Community School District, 80 F.R.D. 492, 493 (N.D.Iowa 1978) (“Rule 23’s general purpose and its underlying policies .. . indicate that a . . . dismissal should be subject to court review . . . even prior to certification”). See also McArthur v. Southern Airways, Inc., 556 F.2d 298, 302-03 (5th Cir. 1977); Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61, 66 (S.D.Tex.1977). B. Notice and Hearing The majority concludes that the settlement violated the due process clause because notice of the proposed settlement should have been given to absent putative class members. Fed.R.Civ.P. 23(e) provides: A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. The notice requirement of Rule 23(e) does not apply when certification has" }, { "docid": "17132025", "title": "", "text": "the representation of the class. Since the Bantolinas no longer represent the class, the court must again determine whether the action is maintainable as a class action. The Bantolinas’ withdrawal of their motion to certify the class places the court in a pre-certification posture. Other courts have applied Rule 23(e) prior to certification of the class. For example, Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61 (S.D.Tex.1977); Rotzenburg v. Neenah Joint School District of Winnebago County, 64 F.R.D. 181 (E.D.Wis.1974); Rothman v. Gould, 52 F.R.D. 494 (S.D.N.Y.1971). See Philadelphia Electric Co. v. Anaconda Brass Co., 42 F.R.D. 324 (E.D.Pa.1967). These courts may have presumed that a class action was proper. Here there is a major defect in the class action; there is no representative of the class. This action is therefore not maintainable as a class action. A class must exist, whether by presumption or fact, before Rule 23(e) is applicable. Pearson, 522 F.2d at 177; Beaver Associates v. Cannon, 59 F.R.D. 508, 510 (S.D.N.Y.1973); Berger v. Purolator Products, Inc., 41 F.R.D. 542, 544-45 (S.D.N.Y.1966); Polakoff v. Delaware Steeplechase and Race Association, 264 F.Supp. 915, 917 (D.Del.1966). Notice is not required by Rule 23(e). 2. Dismissal Even if we presumed that a class action was proper, Rule 23(e) speaks of settlements and dismissals. As noted supra, we are not faced with a settlement in this case. But is the inability to maintain a class action a dismissal of the class action? The court concludes that there is no dismissal within the meaning of Rule 23(e), although literally the court’s determination that an action is not maintainable as a class action is, in effect, a “dismissal” of the class action. But Federal Rule of Civil Procedure 23(d)(4) provides that the court may order that “the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly.” Thus, Rule 23(d)(4) provides a procedure to purge a complaint and action of an improper class action without “dismissing” the class action. Even if a determination that an action is not maintainable as a class action is" }, { "docid": "22864129", "title": "", "text": "approve a proposed settlement prior to certification, it has a duty to do so when the claims of the putative class are being compromised. See Wallican v. Waterloo Community School District, 80 F.R.D. 492, 493 (N.D.Iowa 1978) (“Rule 23’s general purpose and its underlying policies .. . indicate that a . . . dismissal should be subject to court review . . . even prior to certification”). See also McArthur v. Southern Airways, Inc., 556 F.2d 298, 302-03 (5th Cir. 1977); Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61, 66 (S.D.Tex.1977). B. Notice and Hearing The majority concludes that the settlement violated the due process clause because notice of the proposed settlement should have been given to absent putative class members. Fed.R.Civ.P. 23(e) provides: A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. The notice requirement of Rule 23(e) does not apply when certification has been denied. Pearson v. Ecological Science Corp., 522 F.2d 171, 177 (5th Cir. 1978), cert. denied, 425 U.S. 912, 96 S.Ct. 1508, 47 L.Ed.2d 762 (1976). Most courts to consider the issue, however, have held that the notice requirement does apply when parties propose to dismiss or settle prior to a decision on the certification motion. E. g., McAr thur v. Southern Airways, Inc., 556 F.2d 298, 303 (5th Cir. 1977); Wallican v. Waterloo Community School District, 80 F.R.D. 492, 493 (N.D.Iowa 1978); Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61, 66 (S.D.Tex. 1977); Duncan v. Goodyear Tire & Rubber Co., 66 F.R.D. 615, 616 (E.D.Wis.1975); Rotzenburg v. Neenah Joint School District, 64 F.R.D. 181, 182 (E.D.Wis.1974); Muntz v. Ohio Screw Products, 61 F.R.D. 396, 398 (N.D.Ohio 1973); Rothman v. Gould, 52 F.R.D. 494, 496 (S.D.N.Y.1971); Yaffe v. Detroit Steel Corp., 50 F.R.D. 481, 483 (N.D.Ill.1970); Philadelphia Electric Co. v. Anaconda American Brass Co., 42 F.R.D. 324, 328 (E.D.Pa.1967). The court in Shelton v. Pargo, supra, held that “in the pre-certification settlement of an action" }, { "docid": "20593659", "title": "", "text": "court’s decision not to order notice to [putative] class [members]”). Rule 23(d)(1)(B) states, “In conducting an action under this rule, the court may issue orders that: ... require — to protect class members and fairly conduct the action — giving appropriate notice to some or all class members.... ” Assuming for the sake of argument, as the district court did, that this rule permits notice to putative class members before a class has been certified, we find no abuse of discretion in the district court’s refusal to give notice. In a previous case discussing notice to putative class members after the named plaintiffs agree to a settlement, we observed that “unlike the situation in a certified class action, a ‘pre-certification dismissal does not legally bind absent class members,’ and, before certification, the absent putative class member has at best a mere ‘reliance interest,’ the strength of which will vary with the facts of the partic ular case.” Shelton v. Pargo, Inc., 582 F.2d 1298, 1314-15 (4th Cir.1978) (quoting Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61, 69 (S.D.Tex.1977)). Gardner and Scott have not demonstrated that the reliance interest of putative class members in their case is so compelling that the district court’s denial of notice constituted an abuse of its discretion. VI. For the reasons given, the district court’s judgment is AFFIRMED. . Gardner and'Scott are correct that the district court mistakenly referred to our unpublished Bediako decision as binding authority, but that alone does not require reversal. . Neither borrower made any payments after repossession. But they contend that GMAC impermissibly credited their accounts with refunds it received from insurance companies after their policies were canceled, instead of forwarding those refunds to Gardner and Scott. In their opening brief, Gardner and Scott also argue that GMAC collected funds that it designated on their accounts as \"PRIN- PAID,\" \"FIN-PAID,” \"LC-PAID,” and \"OTHER PAID.” But the undisputed evidence shows that these are internal accounting entries used by GMAC to \"zero out” the borrowers’ accounts in its active account management system before reloading them into the system for accounts in default. J.A." }, { "docid": "3844009", "title": "", "text": "E.g., Shelton v. Fargo, Inc., 582 F.2d 1298 (4th Cir. 1978); Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61 (S.D.Tex.1977); Milonas v. Amerada Hess Corp., 25 Fed.R. Serv.2d 738 (S.D.N.Y.1977). Applying the teachings of Professor Newberg, and given my holding above that no prejudice to the class will result from approving plaintiff’s motion for voluntary dismissal, I hold that no notice to the absent class members is necessary on the facts of this case. Because the policies of rule 23(e) would not be served by ordering notice in this case, it would truly be exalting form over substance to force plaintiff to bear what is in my view a wholly unnecessary burden. In conclusion, following the detailed inquiry mandated by rule 23(e), I hold that plaintiff is entitled to a rule 41(a)(1) voluntary dismissal. An appropriate Order follows. . In addition to responding to plaintiffs motion for approval of voluntary dismissal, defendants filed their own substantive motion to dismiss pursuant to rule 12. This opinion concerns only plaintiffs motion for approval of voluntary dismissal. . This disposition makes it unnecessary for me to reach the merits of defendants’ substantive motion to dismiss pursuant to rule 12. . Defendants urge that I impose two conditions on plaintiff should I grant their motion to dismiss voluntarily. First, they ask that I preclude plaintiff from refiling its action. Second, defendants seek reimbursement of attorneys’ fees and expenses expended thus far in the litigation. . Defendants rely heavily on this line of authority, particularly the Third Circuit decision in Kahan. Yet, contrary to defendants’ position, these cases are not dispositive of plaintiff’s motion; rather, the applicability of rule 23(e) is only the beginning of my inquiry. As I read these cases, they hold only that I must undertake the inquiry mandated by rule 23(e). They do not stand for the proposition for which they are cited in defendants’ brief — that is, that plaintiff must give notice to all absent class members as a condition of my approving its motion for voluntary dismissal. . For example, some courts have, on their own motion, denied" }, { "docid": "3843999", "title": "", "text": "prejudicial effects of settlement or dismissal); Shelton v. Pargo, Inc., 582 F.2d 1298 (4th Cir. 1978) (primary purpose of rule 23(e) is to “insure that an absentee class member, against whom an order of dismissal with prejudice would be res judicata, should be afforded an opportunity to be heard before any such order was entered”); Smith v. Josten’s American Yearbook Co., 78 F.R.D. 154, 168-69 (D.Kan. 1978) (court scrutiny of proposed settlements chiefly protects nonparty class members from unfair or unjust settlements affecting their rights), aff’d, 624 F.2d 125 (10th Cir. 1980); Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61 (S.D.Tex.1977) (two conflicting policies underlie rule 23(e): protection of the class interest and encouragement of settlements); Nesenoff v. Muten, 67 F.R.D. 500 (E.D.Va.1974) (policy underlying rule 23(e) is to protect against class representatives unilaterally settling or compromising claims in derogation of the rights of the entire class). Three issues arise against this background of the class protection policy of rule 23(e): (1) the applicability of rule 23(e) to pre-class-certification motions; and, assuming the rule’s applicability, (2) whether I should approve this particular motion for voluntary dismissal, and, assuming I do approve this dismissal, (3) the form of notice proper in these circumstances. B. Applicability of Rule 23(e) to Pre-ClassCertification Motions First, I hold that, as a matter of policy, rule 23(e) does apply to motions for dismissal between the time the action is filed and the time of class certification. The Third Circuit follows the clear majority rule on this issue: “[A] suit brought as a class action should be treated as such for purposes of dismissal or compromise, until there is a full determination the class action is not proper.” Kahan v. Rosenstiel, 424 F.2d 161, 169 (3d Cir. 1970), cert, denied sub nom. Glen Alden Corp. v. Kahan, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970). Accord, American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); Inglewood v. Los Angeles, 451 F.2d 948, 951 (9th Cir. 1972); Petition of Gabel, 350 F.Supp. 624, 627 (C.D.Cal. 1972); Yaffe v." }, { "docid": "19707022", "title": "", "text": "the Supreme Court to the issues at hand, this Court is unwilling to attribute any special significance to the above-quoted language. As stated by Judge Gordon for the Eastern District of Wisconsin in confronting the identical contention: “[I]n my opinion, the Supreme Court’s observation that notice is required after certification intimates no view on the more difficult question presented by this case: is notice of a compromise also required before a class action certification?” Duncan v. Goodyear Tire and Rubber Co., supra at 616. Moreover, adoption of counsel’s technical argument would contradict the analysis by the Advisory Committee on the 1966 amendments to Rule 23 that “[a] negative determination [that the alleged class is not maintainable] means that the action should be stripped of its character as a class action.” Advisory Committee’s Notes of the 1966 Amendments to Rule 23, 39 F.R.D. 98, 104 (1966) (emphasis supplied). Accordingly, because the abuses which Rule 23(e) is designed to combat can occur prior to class certification, this Court holds that Rule 23(e) approval must be obtained for the proposed settlement of a named plaintiff’s claim when the plaintiff has purported to represent a class that he now seeks to dismiss. IV. SCOPE OF THE COURT’S RULE 23(e) OBLIGATIONS Having concluded that Rule 23(e) is applicable to this proposed settlement and dismissal, it is necessary to determine the contours of the Court’s duties, especially with regard to notice to the potential class and approval of class counsel’s attorney’s fee. A. Mandatory Nature of and Purposes Behind Rule 23(e) Approval The Rule 23(e) requirement that a class action “should not be dismissed or compromised without the approval of the court” has been interpreted as mandatory. See 3B J. Moore, Federal Practice ¶23.-80[2.-l] (2d ed. 1975); Harvard study, supra at 1542 n. 32. Before approving the compromise, the Court must in every instance determine that the proposal is fair, reasonable and in the best interests of all who will be affected by it. See, e. g., Grunin v. International House of Pancakes, 513 F.2d 114, 123 (8th Cir. 1975); Young v. Katz, 447 F.2d 431," }, { "docid": "19707021", "title": "", "text": "important consequences for the unnamed members of the class. If the suit proceeds to judgment on the merits, it is contemplated that the decision will bind all persons who have been found at the time of certification to be members of the class. Rule 23(c)(3); Advisory Committee Note, 28 U.S.C. App., pp. 7765-7766, 39 F.R.D. 69, 105-106. Once the suit is certified as a class action, it may not be settled or dismissed without the approval of the court. Rule 23(e).” Id. n. 8. This Court cannot accept the negative implication urged by counsel that, in view of the above-quoted language, Rule 23(e) and its requirement of notice should not be presumed to apply prior to class certification. The Supreme Court did not have before it the factual circumstances and potential for abuse posed by the instant settlement proposal. Rather, the Supreme Court’s discussion pertained to the question of mootness and whether a certified class action survives the resolution of the named plaintiff’s claim. Thus, in view of the unrelated nature of the question before the Supreme Court to the issues at hand, this Court is unwilling to attribute any special significance to the above-quoted language. As stated by Judge Gordon for the Eastern District of Wisconsin in confronting the identical contention: “[I]n my opinion, the Supreme Court’s observation that notice is required after certification intimates no view on the more difficult question presented by this case: is notice of a compromise also required before a class action certification?” Duncan v. Goodyear Tire and Rubber Co., supra at 616. Moreover, adoption of counsel’s technical argument would contradict the analysis by the Advisory Committee on the 1966 amendments to Rule 23 that “[a] negative determination [that the alleged class is not maintainable] means that the action should be stripped of its character as a class action.” Advisory Committee’s Notes of the 1966 Amendments to Rule 23, 39 F.R.D. 98, 104 (1966) (emphasis supplied). Accordingly, because the abuses which Rule 23(e) is designed to combat can occur prior to class certification, this Court holds that Rule 23(e) approval must be obtained for" }, { "docid": "19707034", "title": "", "text": "possibility of a collusive settlement. b. Notice and Protection of the Interests of Absent Class Members If a proposed compromise provides for monetary or injunctive relief to certified class members, then the function of Rule 23(e) notice is to ensure that all persons directly affected by settlement will be heard. Wright, supra § 1797, at 226, 234. Thus, where the substantive rights of class members are at stake, notice has been viewed as constitutionally compelled by the due process clause of the Fourteenth Amendment. Greenfield v. Villager Indus., Inc., 483 F.2d 824, 834 (2nd Cir. 1973). However, where a settlement of the named plaintiff’s claim prior to class certification makes no provision for putative class members, different interests and expectations are at stake because a pre-certification dismissal does not legally bind absent class members. Harvard study, supra at 1541 & n. 29. See EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1361 (6th Cir. 1975) (alleged class member not barred by doctrine of res judicata). Until a class is actually defined, any interest or expectation by an alleged member in a recovery, monetary or otherwise, against the defendant must be classified as speculative. Indeed, the primary interest of alleged class members in the dismissal of an uncertified class action is properly termed a “reliance interest”. See Wheeler, Predismissal Notice, supra at 804-807. Thus, “class members with individually recoverable claims may have relied upon informal publicity about the existence of the class suit and abstained from filing individual or class claims.” Harvard study, supra at 1540 & n. 24 (footnote deleted). The primary purpose of notice in the pre-certification stage would therefore be to inform potential class members that they may no longer rely on the asserted class action, but must file a separate suit dr intervene in the present action as a representative plaintiff. Wright, supra at 232. In Berse v. Berman, 60 F.R.D. 414 (S.D.N. Y.1973), the court, in considering whether notice of a dismissal should be given to absent class members, opted for a flexible case-by-case approach, holding that “the likelihood of prejudice [to absent class members] can only" }, { "docid": "3843998", "title": "", "text": "Goodman v. Beneficial Consumer Discount Co., No. 79-843 (E.D.Pa. Dec. 1, 1980). II. The Rule 23(e) Inquiry Having held that plaintiffs motion for approval of its petition for a voluntary dismissal should be treated under the provisions of rule 41(a)(1), I now proceed to examine plaintiff’s motion under the standards of both rules 23(e) and 41(a)(1). A. Policies Underlying Rule 23(e) Rule 23(e) reads as follows: “A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” Fed.R.Civ.P. 23(e). “The purposes of Rule 23(e) are to discourage the use of the class action device to secure an unjust private settlement, and to protect the absent class members against prejudice from discontinuance.” 3 H. Newberg, Class Actions § 4910, at 402 (1977). See Simer v. Rios, 661 F.2d 655 (7th Cir. 1981) (policies of rule 23(e) include protection of absent class members from res judicata judgment and other prejudicial effects of settlement or dismissal); Shelton v. Pargo, Inc., 582 F.2d 1298 (4th Cir. 1978) (primary purpose of rule 23(e) is to “insure that an absentee class member, against whom an order of dismissal with prejudice would be res judicata, should be afforded an opportunity to be heard before any such order was entered”); Smith v. Josten’s American Yearbook Co., 78 F.R.D. 154, 168-69 (D.Kan. 1978) (court scrutiny of proposed settlements chiefly protects nonparty class members from unfair or unjust settlements affecting their rights), aff’d, 624 F.2d 125 (10th Cir. 1980); Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61 (S.D.Tex.1977) (two conflicting policies underlie rule 23(e): protection of the class interest and encouragement of settlements); Nesenoff v. Muten, 67 F.R.D. 500 (E.D.Va.1974) (policy underlying rule 23(e) is to protect against class representatives unilaterally settling or compromising claims in derogation of the rights of the entire class). Three issues arise against this background of the class protection policy of rule 23(e): (1) the applicability of rule 23(e) to pre-class-certification motions; and, assuming the rule’s applicability," }, { "docid": "6188078", "title": "", "text": "the Settlement Agreement and will be precluded from further litigation of their individual claims. The Supreme Court, in a discussion of the court approval requirement of Rule 23(e), alluded to this underlying assumption: The certification of a suit as a class action has important consequences for the unnamed members of the class. If the suit proceeds to judgment on the merits, it is contemplated that the decision will bind all persons who have been found at the time of certification to be members of the class. Once the suit is certified as a class action, it may not be settled or dismissed without the approval of the court. Sosna v. Iowa, 419 U.S. 393, 399 n. 8, 95 S.Ct. 553, 557 n. 8, 42 L.Ed.2d 532 (1975) (citations omitted). The settlement agreement in this case, unlike any reported decision cited by the parties or located by the Court, provides that the dismissal of this class action is without prejudice. Approval of the settlement and dismissal of the action without prejudice will not have an adverse effect on the rights of any of the class members. That is so because any class member will be able to file an individual claim or, if appropriate, a representative claim on the issues covered by the settlement after such a dismissal. With the case in its present posture, some courts might not deem it necessary to rule on the fairness of a proposed class action settlement because the class members’ rights will not be adversely affected and the primary purpose of Federal Rule of Civil Procedure 23(e), the protection of absent class members, is not directly applicable. This Court believes that such an approach would be imprudent. First, the plain language of Rule 23(e) requires court approval of all dismissals or compromises of class actions. Even Federal Rule of Civil Procedure 41(a) excepts class actions from those cases which may be dismissed by a plaintiff without a court order. Second, allowing a class representative to dismiss an action without court approval if the dismissal is without prejudice would prevent the court from overseeing such" }, { "docid": "22864130", "title": "", "text": "been denied. Pearson v. Ecological Science Corp., 522 F.2d 171, 177 (5th Cir. 1978), cert. denied, 425 U.S. 912, 96 S.Ct. 1508, 47 L.Ed.2d 762 (1976). Most courts to consider the issue, however, have held that the notice requirement does apply when parties propose to dismiss or settle prior to a decision on the certification motion. E. g., McAr thur v. Southern Airways, Inc., 556 F.2d 298, 303 (5th Cir. 1977); Wallican v. Waterloo Community School District, 80 F.R.D. 492, 493 (N.D.Iowa 1978); Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61, 66 (S.D.Tex. 1977); Duncan v. Goodyear Tire & Rubber Co., 66 F.R.D. 615, 616 (E.D.Wis.1975); Rotzenburg v. Neenah Joint School District, 64 F.R.D. 181, 182 (E.D.Wis.1974); Muntz v. Ohio Screw Products, 61 F.R.D. 396, 398 (N.D.Ohio 1973); Rothman v. Gould, 52 F.R.D. 494, 496 (S.D.N.Y.1971); Yaffe v. Detroit Steel Corp., 50 F.R.D. 481, 483 (N.D.Ill.1970); Philadelphia Electric Co. v. Anaconda American Brass Co., 42 F.R.D. 324, 328 (E.D.Pa.1967). The court in Shelton v. Pargo, supra, held that “in the pre-certification settlement of an action begun as a class action, a District Court is not automatically obligated to order notice to all putative class members under the terms of 23(e),” 582 F.2d at 1315, but may, “in its discretion, if it concludes that the ‘fair conduct of the action’ requires it, order notice to absent putative class members,” id. at 1314. I agree with the majority’s holding that while 23(e) notice is not always required when a district court is considering pre-certification settlement, principles of due process and Rule 23(e) compel such notice in the case at bar. Here, the consent decree compromised the claims of both the named plaintiffs and absent putative class members. See Philadelphia Electric Co., supra, 42 F.R.D. at 327. Although putative class members may not have been technically bound by the settlement, their interests were affected by it as a practical matter because the settlement exhausted the unspent funds from the 1979 CIP. They should therefore be given notice and an opportunity to object. The type of notice to be given is a matter left" }, { "docid": "3844002", "title": "", "text": "will have detrimentally relied on its institution. All the court need require is a demonstration by the attorneys that no one will be prejudiced by removing the class allegations. But it is important that the court press the lawyers on this and perhaps make a record of their representations. A. Miller, An Overview of Federal Class Actions: Past, Presént, and Future (Federal Judicial Center Monograph 1977). Other courts considering approvals of voluntary dismissals in the pre-elass-certification stage have adopted similar inquiries. These decisions focus on the underlying policies of rule 23(e) to glean the relevant considerations to weigh before approving a voluntary dismissal. Particularly persuasive and useful is the Fourth Circuit’s analysis: In weighing whether to require a certification determination and notice under the foregoing rule, the District Court “should focus primarily on the possibility that the pre-certification compromise is the product of collusion.” [Magana v. Platzer Shipyard, Inc., 74 F.R.D. 61, 67 (S.D.Tex.1977).] The rationale for thus giving “less weight” to the possibility of prejudice to absent putative class members in the pre-certification context is that, unlike the situation in a certificated class action, a “pre-certification dismissal does not legally bind absent class members,” [id. at 69.] and, before certification, the absent putative class member has at best a mere “reliance interest,\" [Wheeler, Predismissal Notice and Statutes of Limitations in Federal Class Actions After American Pipe and Construction Co. v. Utah, 48 S.Cal.L.Rev. 771, 804-07 (1975).] The strength of which will vary with the facts of the particular case. As Professor Wheeler has pointed out, and as the Court in Magana underscored, this “reliance interest” is at best “speculative.” After all, “no notice to purported class members is required upon the filing of a class action. Therefore, any reliance produced by such a filing arises as a consequence of such person learning of the action through the news media or some other secondary source. The danger of reliance is thus generally limited to actions that would be considered of sufficient public interest to warrant news coverage of either the public or trade-oriented variety. Also, reliance can occur only on" } ]

[ { "docid": "21162772", "title": "", "text": "who makes such an exclamation under the stress of the event lacks the opportunity to reflect and fabricate an untruthful version. United States v. Jones, 30 M.J. 127, 129 (C.M.A.1990). The statement must be “spontaneous, excited or impulsive rather than the product of reflection and deliberation.” United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir.1980). There is no “bright line rule” in determining whether a statement qualifies as an excited utterance. United States v. Arnold, 25 M.J. 129, 132 (C.M.A.1987). The statement need not be made at the same time as the startling event to be admissible as an excited utterance. However, to be admissible, an excited utterance must be made while under the excitement of the offense being prosecuted. See United States v. Grant, 42 M.J. 340, 343 (1995). Although the lapse of time is a relevant factor in the reported cases we have reviewed, it is not the only factor. In fact, “the lapse of any particular period of time ... is not the focus of the rule.” United States v. Miller, 32 M.J. 843, 851 (N.M.C.M.R.1991), aff'd, 36 M.J. 124 (C.M.A.1992). This is particularly true with young children, who tend to “remain in a state of nervous excitement longer.” Grant, 42 M.J. at 343 (quoting State v. Taylor, 66 Ohio St.3d 295, 612 N.E.2d 316, 323 (1993)). The lower court in Grant had recognized that “as the age of the declarant decreases, the more elastic the elapsed time factor, within reason.” United States v. Grant, 38 M.J. 684, 691 (A.F.C.M.R.1993)(citing Iron Shell, 633 F.2d at 86), aff'd on other grounds, 42 M.J. 340 (1995). Having carefully reviewed the record of trial, we agree with the reasons the military judge gave in support of his ruling. See Record at 354-57. Having been extremely happy at the prospect of returning home to her mother, M.D. was clearly disappointed to learn that she had to go back to the hospital and have the doctor examine her private parts again. While we surmise that part of the stress was M.D.’s disappointment that she would not be able to go" } ]

[ { "docid": "8450487", "title": "", "text": "include “any detrimental effect on [the accused’s] trial preparation,” “any impact on the right to a fair trial,” and “any restrictions or burdens on [the accused’s] liberty.” Id. In the unlawful command influence context, we have noted that there was prejudice where the convening authority’s influence deprived the accused of a witness. See Gore, 60 M.J. at 188. For prepreferral delay cases, we have noted that there was prejudice where there was loss of a witness, loss of a witness’s testimony, or loss of physical evidence. United States v. Reed, 41 M.J. 449, 452 (C.A.A.F.1995). In cases involving discovery violations, Article III courts have held that the proper inquiry is whether there was “injury to [an accused’s] right to a fair trial.” United States v. Garrett, 238 F.3d 293, 299 (5th Cir.2000); United States v. Valentine, 984 F.2d 906, 910 (8th Cir.1993) (noting that discovery sanctions are warranted where violations prejudice the defendant’s substantive rights). In making this determination, these courts have examined: (1) whether the delayed disclosure hampered or foreclosed a strategic option, United States v. Mathur, 624 F.3d 498, 506 (1st Cir.2010) (belated Brady disclosure); (2) whether the belated disclosure hampered the ability to prepare a defense, United States v. Warren, 454 F.3d 752, 760 (7th Cir.2006) (noting that belated discovery disclosure did not interfere with ability to prepare a defense), and Golyansky, 291 F.3d 1245, 1250 (10th Cm,2002) (“To support a finding of prejudice, the court must determine that the [discovery disclosure] delay impacted the defendant’s ability to prepare or present its case.”); (3) whether the delay substantially influenced the fact-finder, United States v. De La Rosa, 196 F.3d 712, 716 (7th Cir.1999); and (4) whether the nondisclosure would have allowed the defense to rebut evidence more effectively, United States v. Accetturo, 966 F.2d 631, 636 (11th Cir.1992). See also Discovery and Access to Evidence, 44 Geo. L.J. Ann. Rev. Crim. Proc. 405, 431 n. 1189 (2015) (citing cases where prejudice was found). - As can be seen then, pursuant to this case law, prejudice can arise from discovery violations when those violations interfere with an accused’s" }, { "docid": "13527802", "title": "", "text": "CHARGE II AND CHARGE IV, SPECIFICATION 2, WERE IMPROVIDENT BECAUSE APPELLANT ADMITTED FACTS DURING HIS PROVIDENCY [SIC] INQUIRY THAT AMOUNTED TO THE DEFENSE OF ENTRAPMENT. . William T. Barto, Alexander the Great, The Gordian Knot, and the Problem of Multiplicity in the Military Justice System, 152 Mil.L.Rev. 1 (1996). . See Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) and United States v. Baker, 14 M.J. 361, 373 (C.M.A. 1983)(Cook, J., dissenting). . United States v. Barnard, 32 M.J. 530, 537 (A.F.C.M.R. 1990). . For an excellent discussion of this area of the law, see Michael J. Breslin and LeEllen Coacher, Multiplicity and Unreasonable Multiplication of Charges: A Guide to the Perplexed, 45 A.F.L.Rev. 99 (1998). . This point was noted by Judge Effron in his concurring opinion in United States v. Britton, 47 M.J. 195, 202 (1997)(Effron, J., concurring). . The holdings of the Army and Air Force Courts of Criminal Appeals have kept the differences of the concepts of multiplicity and unreasonable multiplication of charges clearer than our Court has. See, e.g., United States v. Inthavong, 48 MJ. 628, 630 n. 5 (Army Ct.Crim.App.1998); United States v. Erby, 46 M.J. 649, 651-52 (A.F.Ct.Crim. App.1997); United States v. Thomas, 43 M.J. 903, 906 (Army Ct.Crim.App.1996). . For another case where the CAAF treated multiplicity and unreasonable multiplication of charges as distinct, see United States v. Wingate, 50 M.J. 118 (1998)(summary disposition). After finding an unreasonable multiplication of charges, the CAAF also found the charges to be facially duplicative under a multiplicity analysis, citing United States v. Lloyd, 46 M.J. 19 (1997). . After Teters, there is ptherwise no prohibition against governmental abuse in overcharging as long as the elements of all of the charged offenses are different. . Any indication in United States v. Tollinchi, 50 M.J. at 878, that the language in Joyce finding the concepts distinct is merely obiter dictum is rejected. . William Winthrop, Military Law and Precedents 143 (2d ed.1920). . See A.B.A. Standards for Criminal Justice, Standard 3-39 and Discussion (2d ed.1986) (The Prosecution Function, \"Discretion in" }, { "docid": "6725076", "title": "", "text": "one of the reports did not list the person submitting it and that Ms. Wilson did not directly verify the reports’ veracity. When Appellant called HM1 Odom, he testified that he relied upon line-level supervisors to x*eport on who was physically present. Odom also confirmed that those listed as “present” could have left five minutes after reporting for muster, and that people who were late to work, scheduled for a later shift, or detailed elsewhere on the base were listed as “late stay/special detail.” Given the limited results of the cross-examination and defense witness testimony, the military judge l’easonably concluded that nothing had been pi’esented that demonstrated a “lack of trustworthiness.” M.R.E. 803(6). Service members represented as “pi’esent” had been physically verified by a line-level supervisor, and the rule requires only that the records be created based upon “information transmitted by ... a person with knowledge.” Id. Although the meaning of “late stay/special detail” could vary depending on the context, contemporaneous documentation need not be a model of statistical clarity to qualify as a business record. See United States v. Foerster, 65 M.J. 120, 125 (C.A.A.F.2007) (noting that, in analyzing the analogous federal rule, federal courts have held that the business records exception should be “ ‘construed genei'ously in favor of admissibility ” (quoting Conoco Inc. v. Dep’t of Energy, 99 F.3d 387, 391 (Fed.Cir.1996))). We conclude that the military judge did not abuse his discretion by admitting the muster reports as business records. B. Appellant’s Right to Present a Defense The question of admissibility is distinct, however, from the question of whether Appellant should have been allowed to attack the reliability of the evidence before the fact-finder. See United States v. Yeauger, 27 M.J. 199, 202 (C.M.A.1988) (“Once proffered evidence meets the foundational requirements for any of these exceptions [to the hearsay rule], it is admissible .... It is then for the factfinder to decide how much, if any, weight to accord it.”), overruled on other grounds as recognized in United States v. Moreno, 36 M.J. 107, 121 (C.M.A.1992). “It is undeniable that a defendant has a constitutional right" }, { "docid": "8450486", "title": "", "text": "by the discovery violations in three ways. First, the discovery violations delayed the Government’s production — and thus delayed the accused’s receipt — of exculpatory evidence in the form of e-mails, the recantation note, and Miss LRE’s statements. Second, the continuances needed to remedy the Government’s multiple discovery violations prevented the accused from calling a key witness, Dr. Krieg, who passed away before trial could begin, but who was available on the previously scheduled trial dates. Third, the continuances “significantly prejudiced” the accused by: (1) interfering with his career progression; (2) preventing him from communicating with his family to resolve custody issues; and (3) placing him under “extreme and unwarranted restrictions.” The military judge concluded by noting that “[t]he almost com-, píete abdication of discovery duties” “call[ed] into serious question whether the Accused [could] ever receive a fair trial” where evidence was lost, unaccounted for, or left in the hands of an interested party. “Prejudice may take many forms....” Dooley, 61 M.J. at 264. In the speedy trial context, we have noted that prejudice can include “any detrimental effect on [the accused’s] trial preparation,” “any impact on the right to a fair trial,” and “any restrictions or burdens on [the accused’s] liberty.” Id. In the unlawful command influence context, we have noted that there was prejudice where the convening authority’s influence deprived the accused of a witness. See Gore, 60 M.J. at 188. For prepreferral delay cases, we have noted that there was prejudice where there was loss of a witness, loss of a witness’s testimony, or loss of physical evidence. United States v. Reed, 41 M.J. 449, 452 (C.A.A.F.1995). In cases involving discovery violations, Article III courts have held that the proper inquiry is whether there was “injury to [an accused’s] right to a fair trial.” United States v. Garrett, 238 F.3d 293, 299 (5th Cir.2000); United States v. Valentine, 984 F.2d 906, 910 (8th Cir.1993) (noting that discovery sanctions are warranted where violations prejudice the defendant’s substantive rights). In making this determination, these courts have examined: (1) whether the delayed disclosure hampered or foreclosed a strategic option, United" }, { "docid": "7528897", "title": "", "text": "violence” means a felony with an essential element of “the use, attempted use, or threatened use of physical force against the person or property of another,” or an offense that involves a substantial risk that such physical force may be used in committing the offense. See 18 U.S.C. § 924(c)(3). Armed bank robbery is such a crime of violence. See United States v. Johnson, 962 F.2d 1308, 1312 (8th Cir.1992). Further, a defendant is liable as an aider and abettor for use of a firearm in relation to a crime of violence when his accomplice uses a firearm in relation to jointly undertaken criminal activity. See 18 U.S.C. § 2; Rattigan v. United States, 151 F.3d 551, 557-58 (6th Cir.1998) (defendant may be convicted of aiding and abetting a § 924(c) violation even if the defendant never had actual possession of a firearm during the course of committing the crime). Contrary to Defendant’s contention, a firearm need not be operable to satisfy the definition of firearm for purposes of 18 U.S.C. § 924(c). See United States v. Taylor, 54 F.3d 967, 975-76 (1st Cir.1995); see also United States v. Kirvan, 997 F.2d 963, 966 (1st Cir.1993) (the gun must be real, but it “need not be proven to be loaded or operable”); United States v. Hunter, 101 F.3d 82, 85 (9th Cir.1996) (same); United States v. Coburn, 876 F.2d 372, 375 (5th Cir.1989) (unloaded weapon sufficient); United States v. York, 830 F.2d 885, 891 (8th Cir.1987) (nonfunctional weapon sufficient); United States v. Gonzalez, 800 F.2d 895, 899 (9th Cir.1986) (no requirement gun be loaded or operable); United States v. Rouco, 765 F.2d 983, 996 (11th Cir.1985) (proof of operability not required). Accordingly, Defendant’s argument fails. Moreover, even if the operability of the weapon was required, the evidence, when viewed in the light most favorable to the Government, supports a finding that Jones, Defendant’s accomplice, carried a short-barreled shotgun into the bank when they robbed it in violation of § 924(c). The gun was found loaded with five rounds with one round in the chamber. The trial testimony indicated that it" }, { "docid": "15747567", "title": "", "text": "on the nature and cause of these conditions, and testify as to statements the child made during treatment. See generally United States v. Quigley, 35 M.J. 345 (C.M.A.1992), aff'd after reh’g, 40 M.J. 64 (1994); United States v. Siroky, 44 M.J. 394 (1996); United States v. Ureta, 44 M.J. 290 (1996). These hearsay statements may then be considered as substantive evidence of the events described. Quigley, 40 M.J. at 66. Only when the “clinical social worker” directly testifies to the veracity of the child’s complaint, and not even always then, do we consider this regimen fatally flawed. See United States v. Marne, 43 M.J. 35 (1995). Of course, after extensive treatment for child abuse by a natural parent, the expert believes the child; otherwise, she is a quack. One-stop testimony of this type inevitably presumes, as fact, the nature of the child’s physical and physiological problems, the cause of the problems, and, often even, the criminal act by the accused, and then magnifies the error by permitting otherwise inadmissible substantive evidence to be considered. Such testimony does not “assist the trier of fact to understand the evidence or to determine a fact in issue;” it unlawfully relieves them of their burden. Mil. R. Evid. 702, Manual for Courts-Martial, United States (1995); see also United States v. Whitted, 11 F.3d 782 (8th Cir.1993). Fundamentally, such testimony lacks the scientific detachment inherent in the purpose of its admissibility. Instead of detached professional application of scientific, technical or other specialized knowledge to the evidence, triers of fact may be presented with a surrogate witness, whose ability to objectively determine the facts in issue is less than their own. See generally Paul C. Giannelli & Edward J. Imwinkelried, Scientific Evidence § 9-5 (2d ed. 1993 & Supp.1995). Justice is not served when only the court member’s are authorized to conclude that the potentate’s robes are made from whole cloth. On the other hand, the objective scientific explanations, envisioned by the rules of evidence, can be helpful to the trier of fact. United States v. Pagel, 45 M.J. 64 (1996)(ex-pert testimony that it is not" }, { "docid": "18956275", "title": "", "text": "J.E.B.; Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); United States v. Annigoni, 96 F.3d 1132, 1139 (9th Cir.1996) (en banc)). The Court of Appeals for the Armed Forces has established a special military methodology for examining allegedly discriminatory peremptory challenges. (1) When a party peremptorily challenges a court member who is a member of a cognizable group (race/gender), the other party must object and state the basis of the objection. United States v. Moore, 28 M.J. 366, 368 (C.M.A.1989). (2) The challenging party then must provide a race/gender neutral reason for the challenge. Id. (3) The military judge “must review the record and weigh trial counsel’s credibility before he makes a factual determination regarding the presence or absence of purposeful discrimination in the panel member’s rejection.” United States v. Greene, 36 M.J. 274, 281 (C.M.A.1993) (citing Hernandez v. New York, 500 U.S. 352, 364-65, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion)). The military judge may not sustain such a challenge if the reason given is “unreasonable, implausible, or ... otherwise makes no sense.” United States v. Tulloch, 47 M.J. 283, 287 (1997). (4) Because the military judge’s determination of purposeful discrimination is a factual one, largely based on the military judge’s evaluation of the counsel’s credibility, we accord it great deference. We will overturn the military judge’s decision only if it is clearly erroneous. Greene, 36 M.J. at 281 (citing Hernandez, 500 U.S. at 364-65, 111 S.Ct. 1859); United States v. Curtis, 33 M.J. 101, 105 (C.M.A.1991). C. Discussion Neither the Supreme Court nor the Court of Appeals for the Armed Forces has ruled definitively on occupation-based peremptory challenges. In J.E.B., the Supreme Court briefly mentioned occupation-based challenges as they might impact on impermissible gender-based challenges. First, the Court noted that peremptory challenges based on occupation are different from those based on race because they “do not reinforce the same stereotypes about the group’s competence or predispositions that have been used to prevent them from voting, participating on juries, pursuing their chosen professions, or otherwise contributing to civic life.” J.E.B., 511 U.S." }, { "docid": "12076087", "title": "", "text": "members are to be instructed on them, and no fact-finder can convict unless they are convinced beyond a reasonable doubt of their existence, along with the other elements. Here, the military judge failed to instruct the members on the elements of assault that would make the “repeated and unwelcome physical contact of [victims]” a criminal offense, and perhaps shoehorn it into Article 134 (for whatever reason). COMMENTS AND GESTURES In addressing the remaining portions of the three specifications, I note that in the MCM, 1969 (Rev.) there was a form for a specification under Article 134, UCMJ, la-belled: “Indecent, insulting, or obscene language communicated to a female or a child under the age of 16 years.” Id., App. A6-23, ¶ 158. The language of that sample specification is not repeated in the 1984 Manual for Courts-Martial and, as indicated in the Analysis, the use of the terms “insulting” and “to a female” have been deliberately removed. Part TV, ¶ 89, MCM, United States, 1984, App. 21, A21-102. “[E]xcept for cases involving an affront to military authority ... insulting language between soldiers is not a violation of Article 134 unless the language conveys a libidinous message.” Id. (citing United States v. Linyear, 3 M.J. 1027 (N.M.C.M.R.1977), petition denied, 5 M.J. 269 (C.M.A.1978)); see also United States v. Choleva, 33 C.M.R. 599 (N.B.R.1962). In the appellant’s case, the instructions to the members allowed an open-ended offense of “repeated and unwelcome comments of a sexual nature toward [victim]” so long as a fact-finder would agree that the conduct was prejudicial to good order and discipline in the armed forces or of such a nature as to bring discredit to the armed forces, whether or not it was mean-spirited teasing, actual torment, or a libidinous message was intended to be conveyed. In United States v. Henderson, 32 M.J. 941 (N.M.C.M.R.1991), aff'd, 34 M.J. 174 (C.M.A.1992), this Court stated that not all disreputable and service discrediting conduct violates the general article. [Although the government demonstrated that the appellant’s conduct was morally reprehensible and was discrediting to the Marine Corps as testified to by several witnesses" }, { "docid": "17027413", "title": "", "text": "military judge erred to appellant’s prejudice when he failed to consider non-contemporaneous evidence in evaluating the hearsay statement’s trustworthiness. While we agree that the evidentiary standard articulated by the military judge for evaluating the trustworthiness of residual hearsay under Mil. R. Evid. 803(24) where the statement’s author testifies was erroneous, we are satisfied that the appellant was not prejudiced. LAW In United States v. McGrath, 39 M.J. 158, 164-67 (1994) ... [the United States Court of Appeals for the Armed Forces] identified a fundamental difference between [Mil. R. Evid. 803(24) and Mil. R. Evid. 804(b)(5) ]. Where the declarant actually testifies, the military judge may look beyond the circumstances of the declaration and consider corroborating evidence to determine if the declaration is sufficiently trustworthy to be admitted. Where the declarant does not testify, however, the military judge may consider only those circumstances “that surround the making of the statement and that render the declarant particularly worthy of belief.” United States v. Pollard, 38 M.J. 41, 49 (C.M.A.1993), quoting Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3148, 111 L.Ed.2d 638 (1990). United States v. Ureta, 44 M.J. 290, 296 (1996) (emphasis added). DISCUSSION While the court in McGrath approved only the admissibility of non-contemporaneous “corroborating” evidence in evaluating the trustworthiness of a testifying witness’s out of court declaration offered as Mil. R. Evid. 803(24) residual hearsay, we are satisfied that the McGrath rationale may be extended to permit consideration of any relevant non-contemporaneous evidence, including impeaching evidence. Accordingly, we find that the military judge erred as a matter of law when he concluded that he could not, in his discretion, consider non-contemporaneous events relevant to the trustworthiness of A’s accusatory statement. However we are satisfied that the military judge’s error was not prejudicial to the appellant. EVIDENCE CONSIDERED BY THE MILITARY JUDGE The military judge considered the following contemporaneous circumstances of A’s sworn written statement as guarantees of its trustworthiness: A volunteered the allegation of sexual abuse after a minimal inquiry in conjunction with the physical abuse investigation; the allegations were not taken or elicited solely by law" }, { "docid": "17055047", "title": "", "text": "self-defense. All of the various self-defense instructions were tailored in terms of CPL M’s knowledge and beliefs, rather than appellant’s. An instruction explaining the right to use excessive force to deter was not requested or discussed, and was not given. At the conclusion of all the instructions and prior to releasing the members for deliberation, the military judge asked, “Other than any objections previously stated by counsel, do you have any objections or requests for additional insti-uctions at this time? ” (Emphasis supplied). Both counsel responded, “No, sir.” LAW I. Instructions. “The military judge shall give the members appropriate instructions on findings.” Rule for Courts-Martial 920(a) [hereinafter R.C.M.]. This duty includes “[s]uch other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given.” R.C.M. 920(e)(7)(emphasis supplied); United States v. Sellers, 33 M.J. 364 (C.M.A. 1991); United States v. Birdsong, 40 M.J. 606, 609 (A.C.M.R.1994). Instructions on findings must include a description of any special defenses under R.C.M. 916. United States v. Poole, 47 M.J. 17, 18 (1997)(citing R.C.M. 920(e)(3)). In determining whether an instruction on a defense is required, “the question is whether some evidence was presented to which the members might attach credit.” Birdsong, 40 M.J. at 609 (citations omitted). Any doubt concerning the giving of an instruction should be resolved in favor of the accused. United States v. McMonagle, 38 M.J. 53, 58 (C.M.A.1993)(citing United States v. Steinruck, 11 M.J. 322, 324 (C.M.A.1981)); United States v. Carroll, 45 M.J. 604, 607 (Army Ct.Crim.App.1997), pet. denied, 48 M.J. 446 (1998); United States v. Barrows, 48 M.J. 783, 787 (Army Ct.Crim.App.1998). The military judge’s refusal to give a requested instruction is reviewed for abuse of discretion. Poole, 47 M.J. at 19 (citing United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A.1993), cert. denied, 512 U.S. 1244, 114 S.Ct. 2760, 129 L.Ed.2d 875, (1994); United States v. Eby, 44 M.J. 425 (1996)). The party claiming abuse of discretion bears the burden of presenting conclusive argument on the claim. United States v. Mosley, 42 M.J." }, { "docid": "8487792", "title": "", "text": "MAJ Warren’s ad hoc security position, we find that MAJ Warren was acting in an operational capacity and conclude there was no need to provide Appellant with an Article 31(b), UCMJ, warning. Loukas, 29 M.J. at 389. . We note that whether Appellant’s admission was voluntary is a closer question.. When evaluating the voluntariness of a statement, we \"review the totality of the circumstances to determine whether Appellant’s 'will was overborne and his capacity for self-determination was critically impaired.” United States v. Chatfield, 67 M.J. 432, 439 (C.A.A.F.2009) (quoting United States v. Bubonics, 45 M.J. 93, 95 (C.A.A.F. 1996)). This inquiry examines \"the accused's age, education, experience and intelligence.” Id. at 439-40. Certain factors support the position that Appellant’s statement was coerced, such as Appellant being physically secured and questioned by a superior commissioned officer. See United States v. Jones, 73 M.J. 357, 360 (C.A.A.F.2014) (noting existence of subtle pressures in militaiy society when questioned by militaiy superior); United States v. Morris, 49 M.J. 227, 230 (C.A.A.F.1998) (examining whether physical abuse was factor in confession). We also recognize that MAJ Warren pointed a weapon at Appellant, but the military judge found that Appellant \"never saw the weapon pointed at him.” Appellant does not state why this finding is clearly erroneous, so we do not consider MAJ Warren's brandishing the weapon in our analysis. Further, any other coercive factors were minimal, and we therefore find under the totality of the circumstances that Appellant’s confession was voluntary given his age, his college education, his rank as an NCO, and his intelligence. See Morris, 49 M.J. at 230 (noting accused's age and education as factors in determining coercive nature of interrogation). Cf. United States v. Carroll, 207 F.3d 465, 472 (8th Cir.2000) (finding use of physical force to subdue defendant resisting arrest did not render confession involuntary). . Following Appellant's conviction, the Government, without objection from Appellant, withdrew one of the aggravating factors, leaving only one — that there were multiple convictions of premeditated murder in the case. . In his reply brief. Appellant notes two other differences between the military and civilian" }, { "docid": "3841535", "title": "", "text": "(C.A.A.F.2001); see also United States v. LeCompte, 131 F.3d 767, 769 (8th Cir.1997)(recognizing before findings “the strong legislative judgment that evidence of prior sexual offenses should ordinarily be admissible ... ”); United States v. James, 60 M.J. 870, 872-73 (A.F.Ct.Crim.App.2005)(concluding before findings that Mil. R. Evid. 414 does not limit admissibility of evidence of similar crimes in child molestation eases). In child molestation cases prosecuted in federal courts, as in trials by courts-martial, evidence of prior convictions involving child molestation is without question admissible during presentencing. See Fed.R.Crim.P. 32 (Sentencing and Judgment)(applying United States Sentencing Guidelines enhancements); R.C.M. 1001(b)(3). From the plain reading of both Fed.R.Evid. 414(a) and Mil. R. Evid. 414(a), it is equally clear, and we conclude, that Congress intended for evidence of similar crimes involving child molestation to be admissible also during the presentencing phase of a trial, not just on the merits. However, while congressional intent has clearly been given effect within the federal judiciary by Fed.R.Crim.P. 32, the President has not explicitly implemented Congress’ intent by amending R.C.M. 1001(b)(4), or (b)(5) for that matter. In United States v. Davis, 47 M.J. 484 (C.A.A.F.1998), the Court of Appeals for the Armed Forces succinctly explained the military’s hierarchical sources of rights. “These sources are the Constitution of the United States; Federal Statutes, including the [UCMJ]; Executive Orders containing the Military Rules of Evidence; Department of Defense Directives; service directives; and Federal common law.” Davis, 47 M.J. at 485 (citing United States v. Lopez, 35 M.J. 35, 39 (C.M.A.1992)). In Lopez, our superior court concluded that “[n]ormal rules of statutory construction provide that the highest source authority will be paramount, unless a lower source creates rules that are constitutional and provide greater rights for the individual----” Lopez, 35 M.J. at 39. Pursuant to Article 36(a), UCMJ, 10 U.S.C. § 836(a), the President is given the express authority to promulgate both the Rules for Courts-Martial and the Military Rules of Evidence through the Manual for Courts-Martial. The President does this by executive order. Davis, 47 M. J. at 486. The appellant’s pleas at his first general court-martial were found" }, { "docid": "8670549", "title": "", "text": "of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. MCM pt. IV, para. 87.b(2) (emphasis added). Thus the nature of the presence required by the completed offense is germane. See, e.g., United States v. Miergrimado, 66 M.J. 34, 37 (C.A.A.F.2008) (assessing evidence of “heat of sudden passion” element on a charge of attempted voluntary manslaughter); United States v. Brooks, 60 M.J. 495, 497-99 (C.A.A.F.2005) (assessing whether the federal law the appellant attempted to violate required direct communication with an actual minor). Indeed, the nature of the presence required for the completed offense of indecent liberties with a child is the threshold question. The element as stated in the MCM does not define presence. However, the MCM explanation elaborates that “the liberties must be taken in the physical presence of the child, but physical contact is not required.” MCM pt. IV, para. 87.c(2) (emphasis added). Although MCM explanations of offenses are not binding on this Court, they are generally treated as persuasive authority, United States v. Miller, 47 M.J. 352, 356 (C.A.A.F.1997), to be evaluated in light of this Court’s precedent. United States v. Hemingway, 36 M.J. 349, 351-52 (C.M.A. 1993). A requirement that the act be done in the “physical presence” of the child, as described in the MCM explanation, is supported by this Court’s precedent. In United States v. Knowles, 15 C.M.A. 404, 405, 35 C.M.R. 376, 377 (1965), this Court considered whether evidence that the appellant had used indecent language during a telephone conversation with the victim was sufficient to uphold an indecent liberties charge. Prior to Knowles, the Court had already established that the accused must be in the presence of the victim. United States v. Brown, 3 C.M.A. 454, 457, 13 C.M.R. 10, 13 (1953). In Knowles, the Court reasoned that “[t]he offense ... requires greater conjunction of the several senses of the victim with those of the accused than that of hearing a voice over a telephone wire” and therefore the Brown presence requirement was not met. 15 C.M.A. at 405, 35 C.M.R." }, { "docid": "18470543", "title": "", "text": "in favor of the appellant, provided additional corroboration. Although she recanted her claim that the appellant forced her to have sex with him, RC continued to maintain that the appellant physically abused her, confirming, for example, the incident involving the broken ehopstick and the metal skewer. Her testimony dovetailed with the admissions concerning these offenses contained in the appellant’s confession, permitting an inference that he was speaking truthfully as to all of the offenses described therein. United States v. Mitchell, 29 M.J. 854, 855 (A.F.C.M.R.1989). RC also testified that the appellant engaged in intercourse with her on 26 April 2004 and that their bed broke, injuring her. This is consistent with the appellant’s confession, which specified that the last rape was on that date and that the bed broke after he pushed RC down on it. RB’s stipulated testimony, to the effect that she saw RC in her bedroom crying on 26 April 2004, and saw the broken bed, serves as further corroboration. The military judge did not abuse his discretion by admitting the appellant’s confession. 3. Remaining Issues We have considered the remaining issues raised by the appellant and resolve them adversely to him. The evidence admitted at trial was both legally and factually sufficient to support the appellant’s conviction for rape. Article 66(c), UCMJ, 10 U.S.C. 866(c); United States v. Turner, 25 M.J. 324, 324-25 (C.M.A.1987). The appellant has not demonstrated any probability that calling RC as a witness at his Article 32 hearing would have produced a more favorable result, nor that his counsel’s tactical decision to save her for trial was, in light of his confession, unreasonable. United States v. Saintaude, 61 M.J. 175, 179-80 (C.A.A.F.2005), cert. denied, — U.S. —, 126 S.Ct. 576, 163 L.Ed.2d 463 (U.S.2005); United States v. Polk, 32 M.J. 150, 153 (C.M.A.1991). Finally, we find that the appellant’s confession was given voluntarily; and the appellant expressly waived his right to challenge the admission of his confession on voluntariness grounds as part of his bargain with the convening authority. See United States v. Rivera, 46 M.J. 52, 55 (C.A.A.F.1997). Conclusion The findings" }, { "docid": "18470542", "title": "", "text": "it was insufficiently corroborated. We again review the military judge’s decision to admit the appellant’s confession for an abuse of discretion. United States v. Pipkin, 58 M.J. 358, 360 (C.A.A.F.2003). Again, we find no such abuse. To be admitted, an accused’s confession must be corroborated by evidence sufficient to justify an inference that the essential facts of the confession are true. Mil. R. Evid. 304(g). Corroborating evidence need not establish all of the elements of the offense, nor establish the truth of the confession by even a preponderance of the evidence. United States v. Baldwin, 54 M.J. 464, 465 (C.A.A.F.2001). Only a “slight” or “very slight” quantum of evidence is needed to fulfill the corroboration requirement of Mil. R. Evid. 304(g). United States v. Melvin, 26 M.J. 145, 146 (C.M.A.1988); United States v. Yeoman, 25 M.J. 1, 4 (C.M.A.1987). The evidence in the instant case more than meets this requirement. As noted above, the appellant’s confession was most strongly corroborated by RC’s out-of-court statements to the Family Advocacy nurse, Ms. Moultrie. RC’s testimony, while slanted in favor of the appellant, provided additional corroboration. Although she recanted her claim that the appellant forced her to have sex with him, RC continued to maintain that the appellant physically abused her, confirming, for example, the incident involving the broken ehopstick and the metal skewer. Her testimony dovetailed with the admissions concerning these offenses contained in the appellant’s confession, permitting an inference that he was speaking truthfully as to all of the offenses described therein. United States v. Mitchell, 29 M.J. 854, 855 (A.F.C.M.R.1989). RC also testified that the appellant engaged in intercourse with her on 26 April 2004 and that their bed broke, injuring her. This is consistent with the appellant’s confession, which specified that the last rape was on that date and that the bed broke after he pushed RC down on it. RB’s stipulated testimony, to the effect that she saw RC in her bedroom crying on 26 April 2004, and saw the broken bed, serves as further corroboration. The military judge did not abuse his discretion by admitting the appellant’s" }, { "docid": "18956146", "title": "", "text": "his findings of fact are clearly erroneous or his conclusions of law are incorrect.” Ayala, 43 M.J. at 298. III. Admission of the Confession At trial, the appellant moved to suppress all of the admissions and written statements he made regarding the use of drugs. He asserted that the only corroboration for these statements were other admissions, and under the law, one admission could not be used to corroborate another admission. The military judge excluded portions of the appellant’s admissions concerning the use of cocaine, but found that the confession to use of LSD was corroborated by statements he made prior to the alleged use of LSD. The basic military law on corroboration of confessions is contained in Mil.R.Evid. 304(g) and United States v. Cottrill, 45 M.J. 485 (1997). Mil.R.Evid. 304(g) provides in pertinent part that [a]n admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth. Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence____ Corroboration is not required for ... statements made prior to or contemporaneously with the act____ The Court of Appeals for the Armed Forces has held that [t]he corroboration requirement for admission of a confession ... does not necessitate independent evidence of all the elements of an offense or even the corpus delecti of the confessed offense. United States v. Maio, 34 M.J. 215, 218 (C.M.A. 1992). Rather, the corroborating evidence must raise only an inference of truth as to the essential facts admitted. Id.; United States v. Rounds, 30 M.J. 76, 80 (C.M.A. 1990). Moreover, while reliability of the essential facts must be established, it need not be done beyond a reasonable doubt or by a preponderance of the evidence. Maio, supra at 218 n. 1. U.S. v. Cottrill, 45 M.J. 485, 489 (1997). The purpose of the rule is “to guard against conviction" }, { "docid": "15755498", "title": "", "text": "Article 50a), and United States v. Dock, 28 M.J. 117, 120 (C.M.A. 1989)(which served as the basis for the rule adopted in Cosner). We fully recognize the differences in the standards of proof for mental responsibility and mental capacity. Compare United States v. Dubose, 44 M.J. 782 (N.M.Ct.Crim. App.1996) with R.C.M. 706 (requiring examination if a preponderance of the evidence indicates a lack of mental capacity to understand and cooperate in the proceedings) and R.C.M. 1203(c)(5) (the substantial evidence means more than a diagnosis of mental illness, however severe, and requires that any such illness preclude meaningful participation and cooperation in the defense— whether at trial or during the appellate process). We decline to make such a determination in a factual void, and thus have looked beyond the mere assertions of the appellant, her counsel, and Mr. Folsom, to the record and proceedings below for evidence of lacking mental capacity. We find no evidence appellant’s mental capacity is validly raised. As was recently stated by the United States Court of Appeals for the Armed Forces in considering an analogous issue: “[i]f proffered newly discovered evidence patently is full of holes when considered in light of the record of trial ... it would be absurd to hold the reviewing authority slave to the facial, though farcical, so-called ‘dispute’ in the evidence.” United States v. Sztuka, 43 M.J. 261, 268 (1995). Unlawful Command Influence [7-9] The appellant also asserts unlawful command influence on her court-martial. Although she provides a number of indicia that she was unpopular with the command element, she provides no evidence that the “mortal enemy of military justice,” unlawful command influence, actual or apparent, was even so much as “in the air” during her trial. United States v. Thomas, 22 M.J. 388, 393 (C.M.A.1986), cert, denied, 479 U.S. 1085,107 S.Ct. 1289, 94 L.Ed.2d 146 (1987); United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991), cert, denied, 503 U.S. 936, 112 S.Ct. 1473, 117 L.Ed.2d 617 (1992). Although the appellant’s trial defense team attempted to invoke the specter of unlawful command influence to imply that witnesses may have fabricated" }, { "docid": "18958552", "title": "", "text": "874, 882 (10th Cir.1998); United States v. Guardia, 135 F.3d 1326, 1330 (10th Cir.1998); United States v. Mound, 149 F.3d 799, 800-01 (8th Cir.1998); United States v. Sumner, 119 F.3d 658, 661-62 (8th Cir.1997); United States v. Green, 50 MJ. 835, 837-39 (Army Ct.Crim.App.1999); United States v. Wright, 48 MJ. 896, 899 n. 1 (A.F.Ct.Crim.App.1998); United States v. Hughes, 48 M.J. 700, 716 (A.F.Ct.Crim.App.1998)(Mil.R.Evid. 414). Without the procedural protections of Rule 403, the constitutionality of Mil.R.Evid. 413 would be seriously in doubt. Id. There now appears to be a number of predicate determinations that every military judge must make when facing the decision of whether or not to admit evidence under Mil.R.Evid. 413. These include: Determining that the accused is charged with \"an offense of sexual assault.” Mil. R.Evid. 413(a) and (d)(defining an \"offense of sexual assault”); Determining that the evidence offered is \"evidence of the accused's commission of one or more offenses of sexual assault.” Mil.R.Evid. 413(a); Determining that the evidence is relevant under Mil.R.Evid. 402 (\"Evidence which is not relevant is not admissible.”). In this regard, the military judge must conclude that the evidence shows the accused had a particular propensity bearing on the charged offense. Guardia, 135 F.3d at 1332. Part of this relevance determination involves the military judge concluding that the members could reasonably find the conditional fact (i.e., that the accused com mitted the prior sexual assault) by a preponderance of the evidence. Huddleston v. United States, 485 U.S. 681, 689, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988); United States v. Mirandes-Gonzalez, 26 M.J. 411, 413-14 (C.M.A.1988). Determining and ruling that the prejudicial impact of the evidence is substantially outweighed by its probative value. Mil.R.Evid. 403; Guardia, 135 F.3d at 1331; and, Determining that proper disclosure and notice, at least 5 days before trial, of the Government’s intent to offer this evidence has been made. Mil.R.Evid. 413(b). Because of the unique manner in which the Mil.R.Evid. 413 issue arose in this case, these predicate concerns are only haphazardly addressed in the record (e.g., the military judge never addresses the Mil.R.Evid. 403 analysis in relation to" }, { "docid": "15747566", "title": "", "text": "know it, and I do not criticize them for applying it. See United States v. Allbery, 44 M.J. 226 (1996). I do not join in the application of this law to the present case, however, because I do not believe it is in accord with the spirit or the letter of a recent decision from our highest court. In light of the wisdom contained in Tome v. United States, 513 U.S. 150, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995), I would reconsider the underlying assumptions which created the template my brothers used to decide this case. See United States v. Suarez, 35 M.J. 374 (C.M.A.1992) History teaches that the rules of evidence have served us well, while quasi-science on the other hand has not. See Tome, 513 U.S. at 165-67, 115 S.Ct. at 705. Our existing approach to child abuse eases does not recognize these simple truths. Presently, under our military law, a single “clinical social worker”, Record at 389, may treat the child, describe the child’s physical and emotional condition, give an expert opinion on the nature and cause of these conditions, and testify as to statements the child made during treatment. See generally United States v. Quigley, 35 M.J. 345 (C.M.A.1992), aff'd after reh’g, 40 M.J. 64 (1994); United States v. Siroky, 44 M.J. 394 (1996); United States v. Ureta, 44 M.J. 290 (1996). These hearsay statements may then be considered as substantive evidence of the events described. Quigley, 40 M.J. at 66. Only when the “clinical social worker” directly testifies to the veracity of the child’s complaint, and not even always then, do we consider this regimen fatally flawed. See United States v. Marne, 43 M.J. 35 (1995). Of course, after extensive treatment for child abuse by a natural parent, the expert believes the child; otherwise, she is a quack. One-stop testimony of this type inevitably presumes, as fact, the nature of the child’s physical and physiological problems, the cause of the problems, and, often even, the criminal act by the accused, and then magnifies the error by permitting otherwise inadmissible substantive evidence to be considered. Such" }, { "docid": "17055048", "title": "", "text": "United States v. Poole, 47 M.J. 17, 18 (1997)(citing R.C.M. 920(e)(3)). In determining whether an instruction on a defense is required, “the question is whether some evidence was presented to which the members might attach credit.” Birdsong, 40 M.J. at 609 (citations omitted). Any doubt concerning the giving of an instruction should be resolved in favor of the accused. United States v. McMonagle, 38 M.J. 53, 58 (C.M.A.1993)(citing United States v. Steinruck, 11 M.J. 322, 324 (C.M.A.1981)); United States v. Carroll, 45 M.J. 604, 607 (Army Ct.Crim.App.1997), pet. denied, 48 M.J. 446 (1998); United States v. Barrows, 48 M.J. 783, 787 (Army Ct.Crim.App.1998). The military judge’s refusal to give a requested instruction is reviewed for abuse of discretion. Poole, 47 M.J. at 19 (citing United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A.1993), cert. denied, 512 U.S. 1244, 114 S.Ct. 2760, 129 L.Ed.2d 875, (1994); United States v. Eby, 44 M.J. 425 (1996)). The party claiming abuse of discretion bears the burden of presenting conclusive argument on the claim. United States v. Mosley, 42 M.J. 300, 303 (1995)(eiting United States v. Mukes, 18 M.J. 358, 359 (C.M.A.1984)). Application of the doctrine of abuse of discretion is to be used sparingly and only in those cases where “a miscarriage of justice would otherwise result.” United States v. Fisher, 21 M.J. 327, 328-29 (C.M.A.1986)(citing United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)); United States v. Reynolds, 36 M.J. 1128, 1131-32 (A.C.M.R.1993). In Damatta-Olivera, the court adopted a three-part test for resolving such claims of error. 37 M.J. at 478; United States v. Simmons, 48 M.J. 193, 195 (1998). The correctness of an instruction, as a question of law, is reviewed de novo. United States v. Maxwell, 45 M.J. 406, 424 (1996)(citing United States v. Snow, 82 F.3d 935 (10th Cir.1996)). To justify reversing a conviction, an unobjeeted to instructional defect must (1) rise to the level of plain error and (2) be such that it had an unfair, prejudicial impact on the member’s deliberations. United States v. Eckhoff, 27 M.J. 142, 144-45 (C.M.A.1988)(citing" } ]

[ { "docid": "18806798", "title": "", "text": "commingling of Firestone moneys. It’s high time that it be brought to an end. IT IS SO ORDERED. . The district court order specifically stated that: Section 541 of the Bankruptcy Code ... provides that the estate of a bankrupt consists of all its legal or equitable interests in property at the time the bankruptcy action commences. Therefore, property held by a bankrupt in trust for another, where the bankrupt has no cognizable legal or equitable interest in such property, is not part of the bankruptcy estate. In Re Goldblatt Bros., 33 B.R. at 1013. . Section 1961 provides: (a) Interest shall be allowed on any money judgment in a civil case recovered in a district court. Execution therefore may be levied by the marshal, in any case where, by the law of the State in which such court is held, execution may be levied for interest on judgments recovered in the courts of the State. Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment. The Director of the Administrative Office of the United States Courts shall distribute notice of that rate and any changes in it to all Federal judges. (b) Interest shall be computed daily to the date of payment except as provided in section 2516(b) of this title and section 1304(b) of title 31, and shall be compounded annually. 28 U.S.C.A. § 1961(a), (b) (West Supp.1985). . Firestone provided the rates for 52 week United States Treasury Bills, 3-Month United States Treasury Bills, Moody’s Corporate Aaa Bonds and the Prime Rate charged by banks. . Goldblatt’s arguments are unpersuasive, however, because the court in Foster specifically reserved ruling on the issue of whether § 1961 applies to bankruptcy court judgments. Id. 38 B.R. at 641 n. 2. In Furniture Mart the court did not specify the legal rate" } ]

[ { "docid": "6554578", "title": "", "text": "§ 547 complaints against depositors who redeemed their investments on the eve of the SIBC bankruptcy. On May 23, 1985, Judge Clive Bare consolidated more than 900 preference proceedings to decide common issues. Before retiring from the bench on July 1, 1987, Judge Bare conduct ed trials and entered orders resolving many-important and difficult issues of fact and law common to these consolidated preference actions. See, e.g., DuVoisin v. Anderson (In re Southern Indus. Banking Corp.), 71 B.R. 351 (Bankr.E.D.Tenn. 1987) (SIBC was insolvent at all times during the preference period); DuVoisin v. Anderson (In re Southern Indus. Banking Corp.), 66 B.R. 370 (Bankr.E.D.Tenn.1986) (preference actions would be tried without a jury); DuVoisin v. Anderson (In re Southern Indus. Banking Corp.), 66 B.R. 349 (Bankr.E.D.Tenn.1986) (summary judgment on 12 issues including jurisdiction, constitutionality of bankruptcy judges’ terms of office, eligibility of debtor, standing, laches, effect of plan on pending adversary proceedings). The liquidating trustee has established the elements of preference under 11 U.S.C. § 547(b). DuVoisin v. Anderson (In re Southern Indus. Banking Corp.), 88 B.R. 174, (Consolidated Adversary Proceedings) (Bankr.E.D.Tenn.1987). Remaining for resolution are defenses under 11 U.S.C. § 547(e). Several hundred adversary proceedings have concluded by agreements and by default and many await the entry of final judgments, lacking only the calculation of pre- and/or post-judgment interest. II. POST-JUDGMENT INTEREST Post-judgment interest is required by statute: “Interest shall be allowed on any money judgment in a civil case recovered in a district court_” 28 U.S.C. § 1961 (1988). Post-judgment interest is mandatory in this circuit. “This provision mandates the imposition of post-judgment interest, thus removing the award of such interest from the discretion of the District Court.” Bricklayers’ Pension Trust Fund v. Taiariol, 671 F.2d 988, 989 (6th Cir.1982). Accord Bailey v. Chattem, Inc., 838 F.2d 149, 155 (6th Cir.1988); Clissold v. St. Louis-San Francisco Railway, 600 F.2d 35, 39 n. 3 (6th Cir.1979); Blair v. Durham, 139 F.2d 260, 261 (6th Cir.1943). Section 1961 applies in adversary proceedings in the bankruptcy courts. As explained in Firestone Tire & Rubber Co. v. Goldblatt Bros. (In re Goldblatt Bros.)," }, { "docid": "23419579", "title": "", "text": "Video King of Ill., Inc., 100 B.R. 1008, 1016-17 (Bankr.N.D.Ill.1989), although only in dicta in a pretrial opinion denying cross motions for summary judgment. The bankruptcy court reasoned that Ethyl must be given an administrative expense priority, or a lien, for the full value of its right to reclaim because § 546(c)(2) permits the court to “deny reclamation to a seller with such a right of reclamation ... only if the court: (A) grants the claim of such a seller [administrative claim] priority ... or (B) secures such claim by a lien.” (emphasis added). We disagree. When there are goods or traceable proceeds available to reclaim, the alternative remedies in § 546(c)(2) provide needed flexibility. But when the secured creditors have satisfied their claims out of the goods to be reclaimed, granting § 546(c)(2) relief would afford the reclamation seller something it does not have under the UCC — a priority interest in the buyer’s assets other than the goods to be reclaimed. See Action Ind., Inc. v. Dixie Ent., Inc., 22 B.R. 855, 860 (Bankr.S.D.Ohio 1982). Nothing in the text or legislative history of § 546(c) suggests that Congress intended to expand the state law rights of reclamation sellers at the expense of the bankrupt’s unsecured creditors. In this situation, the bankruptcy court does not “deny reclamation” in recognizing that the reclamation right no longer has value; therefore, the alternative remedies of § 546(c)(2) do not come into play. Because Ethyl’s subordinate right of reclamation existed when Pester commenced its Chapter 11 proceeding, but was subject to being rendered valueless by the actions of Pester’s secured creditors, we must now take a closer look at the details of Pester’s confirmed Plan of Reorganization, the document that defined the extent to which, and the manner in which, Pester’s various classes of creditors would share in this debtor’s estate. V. Construing the Plan Under the Plan of Reorganization, Pester transferred its refinery assets (including any chemicals subject to Ethyl’s right to reclaim) to Derby Refining Company in exchange for fifty-four self service gas stations that Derby either owned or leased. The" }, { "docid": "1309628", "title": "", "text": "been (i) reduced to final judgment in a court of competent jurisdiction ..., and (ii) determined to be an Allowed Claim by Final Order of the Bankruptcy Court.” Thus, this Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b). Since this motion concerns the administration of the estate through the Plan, as well as the allowance of claims, this is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (B). DISCUSSION The parties dispute whether the District Court in effect awarded the Bursches post-judgment interest, the import of the judgment under non-bankruptcy law, and whether or not Bankruptcy Code § 524 permits the payment of such interest under the circumstances presented in this case. However, those arguments need not be reached here. Regardless of the merits of any of those disputes, the confirmed Plan unambiguously cuts off any entitlement to post-judgment interest. Paragraph 7.05(b) of the Plan provides that, “[n]o interest on a judgment or settlement shall be included in such an Allowed Claim.” At the time, this provision reflected part of the complex bargaining to achieve a consensual Plan recommended by the PI Claimants Committee. This clause was discussed in In re Pettibone Corp., 134 B.R. 349 (the Current Builders, Inc. and Fireman’s Fund Insurance Company claim litigation). In that case, Fireman’s Fund obtained a final judgment against Pettibone in Florida state court before Pet-tibone filed its bankruptcy petition. The judgment was then stayed by the bankruptcy case. When the state court regained jurisdiction, it entered an order granting Fireman’s Fund both pre- and post-judgment interest. The PL Trustee then moved to allow this claim including the pre and post-judgment interest, and the Court allowed the former but denied the latter. Pre-judgment interest was allowed as part of Fireman Fund’s claim because of the nature of such interest. Pre-judgment interest is an element of damages rather than “interest on a judgment”. Id. at 352. Thus, pre-judgment interest was not barred by ¶ 7.05(b). Id. On the other hand, post-judgment interest, including interest that accrued post-petition, was defined by the Plan as “interest on a" }, { "docid": "23419578", "title": "", "text": "In other words, in the non-bankruptcy context, the secured creditor’s decision with respect to its security interest in the goods will determine the value of the seller’s right to reclaim. Because the purpose of § 546(c) is “to recognize, in part, the validity of section 2-702 of the Uniform Commercial Code,” we think these distinctions must be recognized in determining the value in bankruptcy of a seller’s reclamation right that is subject to superior secured creditor interests. Thus, Pester’s argument — that the claim is worth nothing because the secured creditors were undersecured at the outset — ignores the freedom of secured creditors in non-bankruptcy contexts to relinquish all or part of their security interests. And Ethyl’s argument — that the claim is worth full value because the secured creditors have been satisfied — ignores the possibility that they were satisfied by the goods to be reclaimed, rather than by other Pester assets, in which case the right to reclaim would be extinguished (rendered valueless) under state law. This distinction was recognized in In re Video King of Ill., Inc., 100 B.R. 1008, 1016-17 (Bankr.N.D.Ill.1989), although only in dicta in a pretrial opinion denying cross motions for summary judgment. The bankruptcy court reasoned that Ethyl must be given an administrative expense priority, or a lien, for the full value of its right to reclaim because § 546(c)(2) permits the court to “deny reclamation to a seller with such a right of reclamation ... only if the court: (A) grants the claim of such a seller [administrative claim] priority ... or (B) secures such claim by a lien.” (emphasis added). We disagree. When there are goods or traceable proceeds available to reclaim, the alternative remedies in § 546(c)(2) provide needed flexibility. But when the secured creditors have satisfied their claims out of the goods to be reclaimed, granting § 546(c)(2) relief would afford the reclamation seller something it does not have under the UCC — a priority interest in the buyer’s assets other than the goods to be reclaimed. See Action Ind., Inc. v. Dixie Ent., Inc., 22 B.R. 855, 860" }, { "docid": "23419586", "title": "", "text": "Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 1576, 108 L.Ed.2d 842 (1990). Here, the Plan did not award Ethyl a judgment on its claim; the Plan only saved Ethyl’s claim from discharge under § 1141(d)(1)(A). For this reason, we agree with the bankruptcy court that Ethyl is not entitled to interest from the date of confirmation. The Plan’s silence on the question of interest cannot be construed as reflecting an intent to depart from the normal rule of § 1961 by granting Ethyl post-judgment interest from the date of confirmation. There remains a question not considered by the bankruptcy court — whether Ethyl is entitled to post-judgment interest from the date of that court’s judgment. On this question, the Plan’s silence as to interest is more ambiguous, and we know of no relevant precedents. Because of the overriding federal policy in favor of post-judgment interest reflected in § 1961, we conclude that the Plan provision calling for “payment in full of the amount finally determined to be due by Court order” must be deemed to have contemplated post-judgment interest on that court order. Therefore, Ethyl is entitled to post-judgment interest on its money judgment from the date of the judgment, September 19, 1990. The judgment of the district court is modified to provide for post-judgment interest in accordance with 28 U.S.C. § 1961 from September 19, 1990. As so modified, the judgment is affirmed. . The HONORABLE HAROLD D. VIETOR, Chief Judge of the United States District Court for the Southern District of Iowa. The district court summarily affirmed the decision of the HONORABLE RUSSELL J. HILL, United States Bankruptcy Judge for the Southern District of Iowa. . Kansas law governs this transaction. Kansas has adopted the UCC and its numbering methodology in Chapter 84 of the Kansas Statutes. Thus, UCC § 2-702 is found at Kan.Stat.Ann. § 84-2-702. The remainder of this opinion will cite to the Kansas provisions, rather than their UCC counterparts. . See Matter of PFA Farmers Market Ass'n, 583 F.2d 992 (8th Cir.1978). See generally Richard Mann & Michael Phillips, Section 546(c) of" }, { "docid": "14783144", "title": "", "text": "presented and the claim raised at trial. See generally, Morgan v. Kanak (In re Kanak), 85 B.R. 483 (Bankr.N.D.Ill.1988). Thus, the March payment is avoidable pursuant to Title 11 U.S.C. § 549, rather than pursuant to Title li U.S.C. § 547. This Court finds the March, 1987 payment must be returned to the Debtor with interest. Since the Debtor’s right to recover the post-petition transfer arises under federal law, Title 11 U.S.C. § 549, federal law governs the availability of interest on the recovery. Crampton v. Dominion Bank of Bristol, N.A. (In re the H.P. King Co., Inc.), 64 B.R. 487 (Bankr.E.D.N.C.1986) (citing Ford Motor Co. v. Transport Indemnity Co., 45 B.R. 843 (E.D.Mich.1984)). Post-judgment interest is mandated by statute for civil money judgments recovered in a district court. 28 U.S.C. § 1961 (1988). As federal courts, the bankruptcy courts are required to award post-judgment interest in accordance with 28 U.S.C. § 1961. Pre-judgment interest, on the other hand, is not mandated by 28 U.S.C. § 1961 or the Bankruptcy Code. A review of the case law, however, indicates that pre-judgment interest is proper in this case. See DuVoisin v. Anderson (In re Southern Industrial Banking Corp.), 87 B.R. 518 (Bankr.E.D.Tenn.1988); Wilson v. First National Bank, Lubbock, Texas (In re Missionary Baptist Foundation of America, Inc.), 69 B.R. 536 (Bankr.N.D. Tex.1987). Pre-judgment interest on post-petition transfers voidable under Title 11 U.S. C. § 549 starts to accrue on the date of the transfer. The remaining issue is the rate for pre-judgment interest. Section 1961 fixes the rate of post-judgment interest: [The rate is] equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price of fifty-two week United States Treasury bills settled immediately prior to the date judgment ... (b) Interest shall be computed daily to the date of payment ..., and shall be compounded annually. In fixing pre-judgment interest, most bankruptcy courts have followed 28 U.S.C. § 1961. The pre-judgment interest rate in preference litigation has been fixed at the last auction price of Treasury bills settled immediately prior" }, { "docid": "13687533", "title": "", "text": "a federal court judgment in an action otherwise governed by state law. Pester Refining Co. v. Ethyl Corp. (In re Pester Refining Co.), 964 F.2d 842, 849 (8th Cir. 1992). Under federal law, “[i]nterest shall be allowed on any money judgement in a civil case recovered in a district court.” 28 U.S.C. 1961(a). Because a bankruptcy court is a “unit” of the district court (28 U.S.C. § 151), 28 U.S.C. § 1961 applies to bankruptcy court judgments. Firestone Tire & Rubber Co. v. Goldblatt Bros., Inc. (In re Goldblatt Bros., Inc.), 61 B.R. 459, 466 n. 4 (Bankr.N.D.Ill.1986); DuVoisin v. Anderson (In re Southern Indus. Banking Corp.), 87 B.R. 518, 520 (Bankr.E.D.Tenn.1988). On the other hand, pre-judgment interest in trustee avoidance actions, though not mandated by statute, may be awarded in the discretion of the court. On the record of these cases, we believe the Trustee is deserving of redress for the continued retention of the subject funds subsequent to the commencement of these lawsuits. Pre-judgment interest is an appropriate vehicle to accomplish that equitable objective. Accordingly, pre-judgment interest will be allowed from the date of the filing of the complaints and, because the judgments are predicated on New York substantive law, at the New York rate. N.Y.Civ.Prac.L. & R. 5004 (McKinney’s 1992) (“Interest shall be at the rate of nine per cen-tum....”). The Trustee also seeks reasonable attorneys’ fees and reimbursement of related disbursements. However, under New York law, an award of attorneys’ fees in a fraudulent conveyance action is not appropriate in the absence of a showing of actual fraudulent intent on the part of a defendant. Bucki v. Singleton (In re Cardon Realty Corp.), 146 B.R. 72, 81 (Bankr.W.D.N.Y.1992); Orbach v. Pappa, 482 F.Supp. 117, 121 (S.D.N.Y.1979). Under the traditional American rule, attorneys’ fees are not ordinarily recoverable by a prevailing party in federal litigation in the absence of statutory authorization. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The Supreme Court first recognized this principle almost two centuries ago in Arcambel v. Wiseman, 3 U.S. (3 Dall.)" }, { "docid": "18512826", "title": "", "text": "its response, that the check in question was issued as payment for the goods delivered on March 29, 1991. The Court need not resolve this apparent factual inconsistency since it is admitted that the check did not clear the Debtor’s bank and NAP is only seeking to recover $22,647.10, the value of the March 29th delivery. The existence of any prior shipments and outstanding balances is not relevant to NAP’s reclamation claim under § 546(c) of the Bankruptcy Code or § 2-702 of the Uniform Commercial Code since the Debtor has stipulated that it was insolvent at the time it received the goods. . The post-petition financing was advanced by the Bank for the express purpose of assisting the Debtor in the sale of substantially all of its assets and to allow the continued operation of the Debtor’s business until the date of the sale. The Court approved the Bank’s post-petition advance of $23,000 plus the costs of advertising the public sale in exchange for a super-priority lien on the assets in the Order authorizing the sale dated May 24, 1991. . As discussed infra at p. 559, the secured claims asserted by the Bank, including the post-petition lending were ultimately allowed by this Court without objection by any party to this proceeding. . See e.g., In re Western Farmers Association, 6 B.R. 432 (Bankr.W.D.Wash.1980); In re Wathen's Elevators, Inc., 32 B.R. 912 (Bankr.W.D.Ky.1983); Matter of Bensar Co., Inc., 36 B.R. 699 (Bankr.Ohio 1984); In re FCX, Inc., 62 B.R. 315 (Bankr.E.D.N.C.1986); contra U.S. v. Westside Bank, 732 F.2d 1258 (5th Cir.1984). . The District Court reversed the decision of the Bankruptcy Court reported at 67 B.R. 71 (Bankr.N.D.Ill.1986). . It appears to be a well-settled rule of law that the holder of a perfected security interest under an after-acquired property clause will be treated as a good faith purchaser under § 2-403 with rights superior to the seller’s right of reclamation under § 2-702 of the UCC. In re Coast Trading Co., 744 F.2d 686 (9th Cir.1984); Matter of Samuels & Co., 526 F.2d 1238 (5th Cir.) (en banc)," }, { "docid": "23419587", "title": "", "text": "deemed to have contemplated post-judgment interest on that court order. Therefore, Ethyl is entitled to post-judgment interest on its money judgment from the date of the judgment, September 19, 1990. The judgment of the district court is modified to provide for post-judgment interest in accordance with 28 U.S.C. § 1961 from September 19, 1990. As so modified, the judgment is affirmed. . The HONORABLE HAROLD D. VIETOR, Chief Judge of the United States District Court for the Southern District of Iowa. The district court summarily affirmed the decision of the HONORABLE RUSSELL J. HILL, United States Bankruptcy Judge for the Southern District of Iowa. . Kansas law governs this transaction. Kansas has adopted the UCC and its numbering methodology in Chapter 84 of the Kansas Statutes. Thus, UCC § 2-702 is found at Kan.Stat.Ann. § 84-2-702. The remainder of this opinion will cite to the Kansas provisions, rather than their UCC counterparts. . See Matter of PFA Farmers Market Ass'n, 583 F.2d 992 (8th Cir.1978). See generally Richard Mann & Michael Phillips, Section 546(c) of the Bankruptcy Reform Act: An Imperfect Resolution of the Conflict Between the Reclaiming Seller and the Bankruptcy Trustee, 54 Amer.Bankr. L.J. 239, 241-57 (1980). . Unlike the UCC, § 546(c) is limited to sellers in the ordinary course of business who make a written reclamation demand within ten days of the buyer’s receipt of the goods. . See, e.g., In re Rawson Food Serv., Inc., 846 F.2d 1343, 1347 (11th Cir.1988); In re Intercity Oil Co., 122 B.R. 358 (Bankr.W.D.Wis.1990); Archer Daniels Midland Co. v. Charter Int'l Oil Co., 60 B.R. 854, 856 (M.D.Fla.1986); Matter of Flagstaff Foodserv. Corp., 14 B.R. 462, 465 (Bankr.S.D.N.Y.1981). These cases reflect the origins of reclamation as a rescissional, possessory remedy. Matter of Griffin Retreading is not to the contrary; in Griffin the buyer sold the goods after receiving the seller’s reclamation demand, 795 F.2d at 677. See Intercity Oil Co., 122 B.R. at 360. . We also reject Pester’s argument that the presence of secured creditors with \"super-priority\" status under § 364(c) (1) & (3) precludes § 546(c) relief." }, { "docid": "23419568", "title": "", "text": "whose secured claims exceeded the value of Pester’s assets. When Pester refused to return the chemicals, Ethyl filed this adversary complaint for reclamation under § 546(c) of the Bankruptcy Code. On March 21, 1986, with Ethyl’s reclamation suit still pending, the bankruptcy court confirmed a Plan of Reorganization for Pester and affiliated debtor companies. The Plan treated reclamation claimants as an impaired class of creditors and gave each the choice of settling or pursuing its reclamation claim. Ethyl was the only one that did not settle. After trial, the bankruptcy court upheld Ethyl’s right of reclamation in the amount of its invoices, $126,995.44. Rather than specify a source of funds to pay this claim, the bankruptcy court entered judgment in that amount and directed that, if Pester failed to pay, Ethyl could pursue its judgment remedies under state and federal law. The district court affirmed, and this appeal followed. We have jurisdiction under 28 U.S.C. § 158(d). II. The Statutory Framework This appeal concerns a seller’s right to reclaim goods from a buyer in bankruptcy when the goods are subject to superior competing claims of the buyer’s secured creditors. Reclamation is the right of a seller to recover possession of goods delivered to an insolvent buyer. It is a rescissional remedy, based upon the theory that the seller has been defrauded. Indeed, at common law and under the Uniform Sales Act, the seller could only reclaim goods by proving that the buyer fraudulently induced delivery by misrepresenting its solvency. See generally Robert Braucher, Reclamation of Goods from a Fraudulent Buyer, 65 Mich.L.Rev. 1281, 1283 (1967). The Uniform Commercial Code expanded the remedy by defining a narrow class of cases in which reclamation would be allowed without proof of a misrepresentation as to solvency. (2) Where the seller discovers that the buyer has received goods on credit while insolvent he may reclaim the goods upon demand made within ten (10) days after the receipt____ UCC § 2-702(2). Confirming that the remedy was still grounded in fraud, the official commentary to § 2-702 stated: Subsection (2) takes as its base line the" }, { "docid": "14783143", "title": "", "text": "or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it. Fla.Stat. § 673.3-409 (1988). Another line of cases holds that a transfer occurs upon delivery of the check. See Bernstein v. RJL Leasing (In re White River Corp.), 799 F.2d 631 (10th Cir.1986). This Court finds it more appropriate to follow the Uniform Commercial Code and holds a transfer of a check occurs when the check is honored by the bank. Since the bank had to have honored the check after commencement of this case, the March 1987 payment is a post-petition transfer. Plaintiff did not plead 11 U.S.C. § 549 in its Complaint. At the trial, however, Plaintiff did raise, with the Defendant’s express consent, Section 549 as an alternative for voiding the March, 1987 payment. In accordance with F.R.C.P. 15(b) and Bankruptcy Rule 7015(b), this Court finds it appropriate to conform the pleadings to the evidence presented and the claim raised at trial. See generally, Morgan v. Kanak (In re Kanak), 85 B.R. 483 (Bankr.N.D.Ill.1988). Thus, the March payment is avoidable pursuant to Title 11 U.S.C. § 549, rather than pursuant to Title li U.S.C. § 547. This Court finds the March, 1987 payment must be returned to the Debtor with interest. Since the Debtor’s right to recover the post-petition transfer arises under federal law, Title 11 U.S.C. § 549, federal law governs the availability of interest on the recovery. Crampton v. Dominion Bank of Bristol, N.A. (In re the H.P. King Co., Inc.), 64 B.R. 487 (Bankr.E.D.N.C.1986) (citing Ford Motor Co. v. Transport Indemnity Co., 45 B.R. 843 (E.D.Mich.1984)). Post-judgment interest is mandated by statute for civil money judgments recovered in a district court. 28 U.S.C. § 1961 (1988). As federal courts, the bankruptcy courts are required to award post-judgment interest in accordance with 28 U.S.C. § 1961. Pre-judgment interest, on the other hand, is not mandated by 28 U.S.C. § 1961 or the Bankruptcy Code. A review of the" }, { "docid": "23419584", "title": "", "text": "judgment entered by the bankruptcy court after it sustained Ethyl’s reclamation claim. VI. The Interest Issue Ethyl cross appeals the denial of post-judgment interest from the date of confirmation of the Plan (March 1986). In denying post-judgment interest, the bankruptcy court reasoned that § 84-2-702 does not provide for the payment of interest. However, even in a non-bankruptcy context, we have held that federal law governs whether post-judgment interest is awarded on a judgment in an action otherwise governed by state law. See, e.g., Schumann v. Levi, 728 F.2d 1141, 1143 (8th Cir.1984) (seller’s action for the price under the Minnesota UCC). Under federal law, “interest shall be allowed on any money judgment in a civil case recovered in a district court.” 28 U.S.C. § 1961. Because a bankruptcy court is part of the district court, the statute applies to bankruptcy proceedings. See, e.g., Firestone Tire & Rubber Co. v. Goldblatt Bros., 61 B.R. 459, 466 n. 4 (Bankr.N.D.Ill.1986); In re Southern Ind. Banking Corp., 87 B.R. 518, 520 (Bankr.E.D.Tenn.1988). The bankruptcy court also reasoned that most prior cases have denied interest on § 546(c) claims. See Western Farmers, 6 B.R. at 435-36. That is true, but those were pre-confirmation judgments providing the relief specified under § 546(c), either possession of the goods, or administrative claim priority, or a lien. Here, on the other hand, the bankruptcy court entered a post-confirmation money judgment (i) enforcing the provision in the Plan stating that “reclamation claimants will receive payment in full of the amount finally determined to be due by Court order,” and (ii) stating. that the judgment would be enforced by “remedies available to [Ethyl] under state and federal law.” In these circumstances, we think the relevant question is whether the Plan contained provisions overriding the normal federal post-judgment interest provisions of § 1961, as in Ocasek v. Manville Corp. Asbestos Disease Comp. Fund, 956 F.2d 152, 154 (7th Cir.1992). As the bankruptcy court noted, Pester’s Plan does not provide for interest on any reclamation claim. Interest under § 1961 runs only from the “date of judgment.” Kaiser Alum. & Chem." }, { "docid": "13687532", "title": "", "text": "Gross v. Russo (In re Russo), 1 B.R. at 369, 379 (E.D.N.Y.1979). In addition to the presumption of insolvency under New York law available to the Plaintiff herein, the Trustee’s accountant testified that he had determined, based upon his review of the Debtors’ books and records, that Stephen Douglas and Harvard were insolvent at the time of the challenged transfers. Defendants argue that the accountant’s testimony was eonclusory and that the Trustee therefore failed to sustain his burden of proof in respect of insolvency. These arguments are academic. The Trustee sustained his burden regarding insolvency by virtue of an applicable presumption in each of the two adversary proceedings, and Defendants failed to submit any evidence whatsoever to rebut that presumption. Y. Plaintiff requests judgments of $5,250.00 and $13,889.39 against Goldberger and Landau, respectively, “plus interest thereon since the date of [each] complaint”. Apparently, the Trustee’s requests for interest are directed toward prejudgment interest. Post-judgment interest need not be specifically requested; it is mandated by federal statute. Federal law governs whether post-judgment interest is awarded on a federal court judgment in an action otherwise governed by state law. Pester Refining Co. v. Ethyl Corp. (In re Pester Refining Co.), 964 F.2d 842, 849 (8th Cir. 1992). Under federal law, “[i]nterest shall be allowed on any money judgement in a civil case recovered in a district court.” 28 U.S.C. 1961(a). Because a bankruptcy court is a “unit” of the district court (28 U.S.C. § 151), 28 U.S.C. § 1961 applies to bankruptcy court judgments. Firestone Tire & Rubber Co. v. Goldblatt Bros., Inc. (In re Goldblatt Bros., Inc.), 61 B.R. 459, 466 n. 4 (Bankr.N.D.Ill.1986); DuVoisin v. Anderson (In re Southern Indus. Banking Corp.), 87 B.R. 518, 520 (Bankr.E.D.Tenn.1988). On the other hand, pre-judgment interest in trustee avoidance actions, though not mandated by statute, may be awarded in the discretion of the court. On the record of these cases, we believe the Trustee is deserving of redress for the continued retention of the subject funds subsequent to the commencement of these lawsuits. Pre-judgment interest is an appropriate vehicle to accomplish that equitable" }, { "docid": "23419585", "title": "", "text": "that most prior cases have denied interest on § 546(c) claims. See Western Farmers, 6 B.R. at 435-36. That is true, but those were pre-confirmation judgments providing the relief specified under § 546(c), either possession of the goods, or administrative claim priority, or a lien. Here, on the other hand, the bankruptcy court entered a post-confirmation money judgment (i) enforcing the provision in the Plan stating that “reclamation claimants will receive payment in full of the amount finally determined to be due by Court order,” and (ii) stating. that the judgment would be enforced by “remedies available to [Ethyl] under state and federal law.” In these circumstances, we think the relevant question is whether the Plan contained provisions overriding the normal federal post-judgment interest provisions of § 1961, as in Ocasek v. Manville Corp. Asbestos Disease Comp. Fund, 956 F.2d 152, 154 (7th Cir.1992). As the bankruptcy court noted, Pester’s Plan does not provide for interest on any reclamation claim. Interest under § 1961 runs only from the “date of judgment.” Kaiser Alum. & Chem. Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 1576, 108 L.Ed.2d 842 (1990). Here, the Plan did not award Ethyl a judgment on its claim; the Plan only saved Ethyl’s claim from discharge under § 1141(d)(1)(A). For this reason, we agree with the bankruptcy court that Ethyl is not entitled to interest from the date of confirmation. The Plan’s silence on the question of interest cannot be construed as reflecting an intent to depart from the normal rule of § 1961 by granting Ethyl post-judgment interest from the date of confirmation. There remains a question not considered by the bankruptcy court — whether Ethyl is entitled to post-judgment interest from the date of that court’s judgment. On this question, the Plan’s silence as to interest is more ambiguous, and we know of no relevant precedents. Because of the overriding federal policy in favor of post-judgment interest reflected in § 1961, we conclude that the Plan provision calling for “payment in full of the amount finally determined to be due by Court order” must be" }, { "docid": "5248722", "title": "", "text": "issue of liability prior to the trial, the only issue before the jury was that of damages. On July 23, 1990, the jury returned an award of $4 million for the plaintiff. After several adjustments to that award, the district court entered judgment for the plaintiff in the amount of $3,629,191.20, and ordered that the award not accrue interest. It is from the district court’s ruling that interest not accrue on the award that the plaintiff/appellant appeals. We affirm. Post-judgment interest is authorized by both Illinois and federal statutes. Neither, however, is controlling here. Although, as a general matter, the Illinois Code provides that “[ejvery judgment shall bear interest thereon ...,” Ill.Rev.Stat. ch. 110, para. 12-109, two principles dictate that the provision should not govern the decision in this case. First, this case arises under a confirmed bankruptcy reorganization plan. Because the bankruptcy code explicitly provides that “the provisions of a confirmed plan bind the debtor ... and any creditor ...,” 11 U.S.C. § 1141(a), the terms of the Plan govern any award of interest due to the appellant. Furthermore, it is well settled that the Supremacy Clause dictates that when state law is contrary to federal bankruptcy law, the bankruptcy provisions prevail. Jones v. Keene Corp., 933 F.2d 209, 214 (3d Cir.1991); In re Wimmer, 121 B.R. 539, 543 (Bankr.C.D.Ill.1990). It is clear that the appellant cannot rest on Illinois law to support the argument that interest should accrue on its judgment. Federal law also provides for the award of interest on civil judgments, mandating that “[ijnterest shall be allowed on any money judgment in a civil case recovered in a district court.” 28 U.S.C. § 1961. This provision applies to judgments entered by a bankruptcy court. In re A.S.M., Inc., 110 B.R. 802, 806 (Bankr.W.D.Tex.1990). Nevertheless, in this case, the ruling on interest was issued not from the bankruptcy court but rather from a federal district court. Here, the bankruptcy reorganization plan was in place at the time of the district court’s rulings; therefore, the Plan’s interest provisions, which are more specific than that of the general statutory" }, { "docid": "23419583", "title": "", "text": "bankruptcy court approval through confirmation, to facilitate Pester’s reorganization. Because the secured creditors released their superi- or liens and satisfied their claims from unrelated assets and income sources, the bankruptcy court properly valued Ethyl’s right to reclaim at the full invoice price of the chemicals. Pester argues that Ethyl is estopped and barred from asserting any right it had to the alternative remedies allowed by § 546(c) because the confirmed Plan, as explained in the debtors’ Disclosure Statement and as subsequently modified, expressly excludes reclamation claimants from administrative expense priority. Therefore, Ethyl must be relegated to an unsecured creditor status. The bankruptcy court rejected this argument, after exam ining the relevant terms of the Plan, the Disclosure Statement, and the modifying Master Agreement in great detail. We agree with its analysis of these documents. We also note that the Plan expressly provides that non-settling reclamation claimants, such as Ethyl, “will receive payment in full of the amount finally determined to be due by Court order.” Thus, the Plan does not bar, but expressly contemplates, the judgment entered by the bankruptcy court after it sustained Ethyl’s reclamation claim. VI. The Interest Issue Ethyl cross appeals the denial of post-judgment interest from the date of confirmation of the Plan (March 1986). In denying post-judgment interest, the bankruptcy court reasoned that § 84-2-702 does not provide for the payment of interest. However, even in a non-bankruptcy context, we have held that federal law governs whether post-judgment interest is awarded on a judgment in an action otherwise governed by state law. See, e.g., Schumann v. Levi, 728 F.2d 1141, 1143 (8th Cir.1984) (seller’s action for the price under the Minnesota UCC). Under federal law, “interest shall be allowed on any money judgment in a civil case recovered in a district court.” 28 U.S.C. § 1961. Because a bankruptcy court is part of the district court, the statute applies to bankruptcy proceedings. See, e.g., Firestone Tire & Rubber Co. v. Goldblatt Bros., 61 B.R. 459, 466 n. 4 (Bankr.N.D.Ill.1986); In re Southern Ind. Banking Corp., 87 B.R. 518, 520 (Bankr.E.D.Tenn.1988). The bankruptcy court also reasoned" }, { "docid": "23419567", "title": "", "text": "LOKEN, Circuit Judge. Pester Refining Company, a reorganized Chapter 11 debtor, appeals the district court’s post-confirmation money judgment to satisfy Ethyl Corporation’s priority claim under § 2-702 of the Uniform Commercial Code and § 546(c) of the Bankrupt cy Code to reclaim goods sold to Pester while insolvent. Ethyl cross appeals, arguing that the district court should have awarded post-judgment interest from the date Pester’s Plan of Reorganization was confirmed. We modify the bankruptcy court’s denial of interest and otherwise affirm. I. The Factual Setting On February 19 and 22,1985, Ethyl delivered 6,000 gallons of a gasoline additive in a railroad tank car and twelve fifty-five gallon drums of an antioxidant to Pester’s refinery in El Dorado, Kansas. Ethyl invoiced the insolvent Pester $126,995.44 for these credit sales. On February 25, Pester filed for protection under Chapter 11 of the Bankruptcy Code. On February 27, Pester received Ethyl’s written demand to reclaim the chemicals. Though the chemicals were still on hand and identifiable, they were also subject to perfected security interests of various secured creditors whose secured claims exceeded the value of Pester’s assets. When Pester refused to return the chemicals, Ethyl filed this adversary complaint for reclamation under § 546(c) of the Bankruptcy Code. On March 21, 1986, with Ethyl’s reclamation suit still pending, the bankruptcy court confirmed a Plan of Reorganization for Pester and affiliated debtor companies. The Plan treated reclamation claimants as an impaired class of creditors and gave each the choice of settling or pursuing its reclamation claim. Ethyl was the only one that did not settle. After trial, the bankruptcy court upheld Ethyl’s right of reclamation in the amount of its invoices, $126,995.44. Rather than specify a source of funds to pay this claim, the bankruptcy court entered judgment in that amount and directed that, if Pester failed to pay, Ethyl could pursue its judgment remedies under state and federal law. The district court affirmed, and this appeal followed. We have jurisdiction under 28 U.S.C. § 158(d). II. The Statutory Framework This appeal concerns a seller’s right to reclaim goods from a buyer in bankruptcy" }, { "docid": "7471871", "title": "", "text": "were the only ‘hardship cases’ Congress intended to exempt.”). That inference is particularly appropriate here since there is no apparent reason why a judgment creditor’s right to interest should turn on whether the judgment issued in the district court or a unit thereof. Cf. United States v. Ron Pair Enters., 489 U.S. 235, 243, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (concluding that non-consensual lienholders are entitled to post-petition interest under 11 U.S.C. § 506(b), based in part on the Court’s view that there was no “significant reason why Congress would have intended, or any policy reason would compel, that [such creditors] ... be treated differently” from those holding consensual security interests). And in fact, bankruptcy cases routinely hold that “[§ 1961(a) ] applies to bankruptcy proceedings.” In re Pester Refining Co., 964 F.2d 842, 849 (8th Cir.1992); Ocasek v. Manville Corp. Asbestos Disease Compensation Fund, 956 F.2d 152, 154 (7th Cir.1992); In re Resyn Corp., 945 F.2d 1279, 1284 (3d Cir.1991); Grant v. George Schumann Tire & Battery Co., 908 F.2d 874, 883 (11th Cir.1990); In re Thrall, 196 B.R. 959, 962 (Bankr.D.Colo. 1996) (collecting cases); In re Meyer, 206 B.R. 410, 419 (Bankr.E.D.Va.1997); In re Harvard Knitwear, Inc., 193 B.R. 389, 399 (Bankr.E.D.N.Y.1996); In re Southern Indus. Banking Corp., 87 B.R. 518, 520 (Bankr.E.D.Tenn.1988); see also, e.g., In re Win-Vent, Inc., 217 B.R. 803, 818 (Bankr.W.D.Mo.), aff'd, 217 B.R. 798 (W.D.Mo.1997) (awarding interest under § 1961(a) on judgment for bank against the bankruptcy trustee and another party); In re Ramirez Rodriguez, 209 B.R. 424, 434 (Bankr.S.D.Tex.1997) (doing likewise in judgment for trustee); In re Davis, 172 B.R. 437, 459 (Bankr.D.D.C.1994) (doing likewise in judgment for debtor). Therefore, the Court concludes that the reference in § 1961(a) to judgments “recovered in a district court” includes judgments issued by a bankruptcy court. B. A § 502(b) Order Constitutes a Money Judgment The next issue is whether an allowed claim is a “money judgment.” As one might expect, a “money judgment” consists of three elements: it must be a judgment; entitling the plaintiff to a specified sum of money; and such" }, { "docid": "6582755", "title": "", "text": "should not be confirmed unless it is feasible. The debtor’s ability to pay, however, is irrelevant when the question is whether the plan provides for payment of the present value of a creditor’s claim as required by § 1129(a)(9)(C). 709 F.2d at 653, n. 9. The Court is persuaded that Debtor’s ability to pay should not be considered in determining the appropriate interest rate for present value purposes. Trustee urges the Court to adopt the “legal rate of interest” as the appropriate method for determining present value. Trustee argues that a floating rate would be difficult for her to calculate and admin ister. Trustee contends that the legal rate reasonably compensates secured creditors for the delay in receiving payments under the Chapter 13 plan. Trustee contends that the legal rate of interest is twelve percent per annum. See O.C.G.A. § 7-4-12 (1989) (State court judgments bear interest at twelve percent per year unless rendered on a written contract, in which case the judgment bears interest at rate specified in the contract); contra 28 U.S.C.A. § 1961(a) (West Supp.1989) (Money judgment in civil case in district court bears interest at rate based on fifty-two week United States Treasury Bills); DuVoisin v. Anderson (In re Southern Industrial Banking Corp., 87 B.R. 518, 520 (Bankr.E.D.Tenn.1988) (Section 1961 applies to judgments rendered in bankruptcy courts which are units of the district courts). The Court is aware that a floating interest rate, in addition to being administratively difficult for Trustee to administer, renders the preparation and determination of the feasibility of a debtor’s plan quite complicated. See United States v. Doud, 869 F.2d at 1146. Movant contends that the interest rate should be the same as the contract rate. Movant contends that any other rate is a renegotiation of the contract without the creditor’s consent. Movant argues that Debtor agreed to pay the contract rate when he purchased the furniture. Finally, Movant contends that Congress presumes that the contract rate is the interest rate for present value purposes. During the legislative process leading to the Bankruptcy Amendments and Federal Judgeship Act of 1984, Congress specifically" }, { "docid": "18552987", "title": "", "text": "¶ 548.10 at 129 (Lawrence P. King ed., 15th ed. 1995). “The [Defendants’ bald assertion[s], completely unsupported by evidence, [do] not satisfy their burden; [and] certainly [do] not ‘present[] a sufficient disagreement to require submission to a jury’ as required by Fed.R.Civ.P. 56(e).” Carey, 923 F.2d at 21 (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12). Therefore, summary judgment in favor of the Trustee is granted. IV. The Trustee in each of his complaints requests judgments against each of the Defendants for the challenged transfers “plus interest thereon since the date of [each] complaint together with the costs and disbursements of [each action] including the Trustee’s reasonable attorney’s fees.” The Trustee need not specifically request post-judgment interest as it is mandated by federal law. Federal law governs whether post-judgment interest is awarded on a federal court judgment in an action otherwise governed by state law. Pester Ref. Co. v. Ethyl Corp. (In re Pester Ref. Co.), 964 F.2d 842, 849 (8th Cir.1992). The operative statute is 28 U.S.C. § 1961(a), which reads in pertinent part: “[i]nterest shall be allowed on any money judgement in a civil case recovered in a district court.” Because a bankruptcy court is a “unit” of the district court (28 U.S.C. § 151), 28 U.S.C. § 1961 applies to bankruptcy court judgments. See Firestone Tire & Rubber Co. v. Goldblatt Bros., Inc. (In re Goldblatt Bros., Inc.), 61 B.R. 459, 466 n. 4 (Bankr.N.D.Ill.1986); DuVoisin v. Anderson (In re Southern Indus. Banking Corp.), 87 B.R. 518, 520 (Bankr.E.D.Tenn.1988). Pre-judgment interest in trustee avoidance actions, though not mandated by statute, may be awarded at the discretion of the court. Bergquist v. Anderson-Greenwood Aviation Corp. (In re Bellanca Aircraft Corp.), 850 F.2d 1275, 1281 (8th Cir.1988). On the record of these cases, we believe the Trustee is deserving of redress for the wrongful retention of the subject funds during the pendency of the lawsuits and that pre-judgment interest is an appropriate vehicle to accomplish this equitable objective. See Turner v. Davis, Gillenwater & Lynch (In re Investment Bankers, Inc.), 4 F.3d 1556, 1566 (10th Cir.1993), cert." } ]

[ { "docid": "15130160", "title": "", "text": "that such remand is conditional upon and shall only take effect upon the final assignment of said consolidated cause [to a visiting or retired state judge]. In the event that the BROWNING INTERESTS and Debtors [Humble and Holloway] are unable to obtain the assignment of said consolidated cause as prescribed ..., the remand of said consolidated cause shall not take effect and the Bankruptcy Court shall retain jurisdiction over said cause which shall proceed to trial in the Bankruptcy Court before a jury. (Emphasis added.) The cases were remanded and consolidated and the presiding judge assigned the case to a retired state judge who ordered that a prior settlement agreement between the parties’to the 1979 case entered in state court be enforced. In 1981, the state court of appeals reversed and remanded the case for a jury trial and the Texas Supreme Court found no reversible error. Upon remand, the 1979 case was assigned to a different retired state judge who entered an instructed verdict after a separate trial on the settlement agreement declaring the prior settlement agreement to be unenforceable. He then ordered that the case proceed to trial on the merits. On May 26, 1982, a group of investors sued Holloway and Humble in the 162nd Judicial District Court of Dallas County, Judge Dee Brown Walker (an active state district judge) presiding, claiming that the defendants wrongfully shut-in some oil and gas wells jointly owned by the investors and Humble. The plaintiffs sought the appointment of a receiver over Humble’s assets. (This case is hereinafter referred to as the “1982 case.”) The Brownings were named as defendants in the 1982 case because of their claim to ownership of Humble’s and Holloway’s assets. The 1982 case was removed to the Bankruptcy Court and remanded on the same day. Believing that the Brownings, during a May 27 hearing on the 1982 case, had requested a receiver over the assets of Humble, Humble filed a complaint in Bankruptcy Court seeking enforcement of the Bankruptcy Court’s January 18, 1980 order forbidding the appointment of a receiver over Humble’s assets as a form" } ]

[ { "docid": "4204204", "title": "", "text": "and the fact that the Debtor made arrangements to bring his payments current with both the first mortgage holder, Provident Bank, and the Hamilton County Treasurer, we hereby find the Debtor’s motion to be well-taken. The bankruptcy court’s order specifically states that the portion of Debtor’s motion requesting that the court “reopen” the case is moot because the case was never closed. This appeal timely followed. IV. DISCUSSION The Panel will first address Gammarino’s procedural argument. Debtor’s motion was titled “Motion to Reopen Case, Vacate Order of Dismissal and Resume Payment.” Debtor’s written motion cited only 11 U.S.C. § 350(b) and Local Bankruptcy Rule 5010 as authority for the relief he sought, although he orally cited both 11 U.S.C. § 105 and Fed.R.Civ.P. 60(b) at the hearing. Both § 350(b) and Local Bankruptcy Rule 5010 address reopening of closed cases. In bankruptcy, case closing is a concept distinct from case dismissal. Armel Laminates, Inc. v. The Lomas & Nettleton Co. (In re Income Property Builders, Inc.), 699 F.2d 963, 965 (9th Cir.1982). Under § 350(a), the court shall close a case “[ajfter an estate is fully administered and the court has discharged the trustee.” Section 350(b) in turn provides that “[a] case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.” But a case can only be reopened if it was first closed. Id. The record shows that Debtor’s case was dismissed, not closed, by the time Debtor filed his motion. Therefore, Debt- or’s request to reopen the case was unnecessary and the bankruptcy court so noted by finding that much of the requested relief moot. The record shows that the bankruptcy court did not “reopen” the case and did not rely on § 350(b). Debtor’s motion was also clearly styled as a motion to vacate the order of dismissal, in addition to seeking what was unnecessary relief in reopening a case that was not closed. And the bankruptcy court’s statements on the record demonstrate that it was deciding Debt- or’s motion insofar as" }, { "docid": "20262109", "title": "", "text": "Bankruptcy Code],” id. § 1334(b). Debtors did not choose option (2) by timely removing the State Court case — in whole or in part — to federal court. Debtors did not file their complaint for declaratory relief in the Florida Bankruptcy Court until April 2008, nearly four years after Creditors filed the State Court action, in December 2004. Thus, even if the Florida Bankruptcy Court had treated the complaint as a de facto removal under 28 U.S.C. § 1452(a), that removal would have been untimely. And the general removal statute, 28 U.S.C. § 1441, would not have applied; the State Court case, consisting only of state-law claims, was not one \"of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). As for option (3), 11 U.S.C. § 350 provides for the bankruptcy courts' administrative powers to open and close bankruptcy cases: (a) After an estate is fully administered and the court has discharged the trustee, the court shall close the case. (b) A case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause. 11 U.S.C. § 350. \"[U]nder Bankruptcy Rule 4007(b) either the debtor or the creditor can move to reopen the case for the purpose of filing a complaint to determine dischargeability.” In re James, 184 B.R. 147, 150-51 (Bankr.N.D.Ala.1995) (quoting In re Mendiola, 99 B.R. 864, 870 (Bankr.N.D.Ill.1989) (internal quotation marks omitted)). Bankruptcy Rule 4007 provides that \"[a] debtor or any creditor may file a complaint to obtain a determination of the dischargeability of any debt.” Fed. R. Bankr.P. 4007(a). \"This rule prescribes the procedure to be followed when a party requests the court to determine dis-chargeability of a debt pursuant to § 523 of the Code,” id. note, which in turn lists exceptions to discharge under, inter alia, 11 U.S.C. § 1141, see 11 U.S.C. § 523. Thus, § 350(b) provides a mechanism whereby, after an estate has been administered according to a confirmed reorganization plan, the debtor or a creditor may reopen a bankruptcy" }, { "docid": "18317090", "title": "", "text": "was neither assumed nor rejected during the bankruptcy case “rode through” the bankruptcy. The debate over when the cause of action accrued is moot for purposes of bankruptcy analysis. The court correctly declined to impose judicial estoppel against JZ in the matter before it and correctly deferred to the state court as to the question of judicial estoppel in state court. AFFIRMED. . Although this case arose before, and is not governed by, the provisions of Pub.L. No. 109-8 (\"BAPCPA”), BAPCPA would not necessitate material changes in our analysis. United States Code citations are to the 2000 edition, unless otherwise indicated. . The Lasater Court reasoned: It cannot be that a bankrupt, by omitting to schedule and withholding from his trustee all knowledge of certain property, can, after his estate in bankruptcy has been finally closed up, immediately thereafter assert title to the property on the ground that the trustee had never taken any action in respect to it. If the claim was of value (as certainly this claim was according to the judgment below) it was something to which the creditors were entitled, and this bankrupt could not, by withholding knowledge of its existence, obtain a release from his debts and still assert title to the property. Lasater, 196 U.S. at 119, 25 S.Ct. 206. . Section 350(b) provides: (b) A case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause. 11 U.S.C. § 350(b). Rule 5010 implements § 350(b): A case may be reopened on motion of the debtor or other party in interest pursuant to § 350(b) of the Code. In a chapter 7, 12, or 13 case a trustee shall not be appointed by the United States trustee unless the court determines that a trustee is necessary to protect the interests of creditors and the debtor or to insure efficient administration of the estate. Fed. R. Bankr.P. 5010. . The provision is repeated in identical language in chapters 12 and 13. 11 U.S.C. §§ 1227(b), 1327(b). Revesting is not relevant" }, { "docid": "5822384", "title": "", "text": "ZNC was the best since the case was filed. He was able to escalate the offer from ZNC to $15,000.00. (12/5/05 Audio record at 2:27:05 to 2:27:35.) The Trustee concluded that he had more leeway than he previously had thought in negotiating with ZNC to significantly raise its offer. (Id. at 3:01:46 to 3:02:05.) The Trustee stated that there came a point in time, after the $15,000.00 settlement offer was made by ZNC, when he indicated to ZNC that he wanted enough money as a settlement to pay all of the Debtor’s creditors in full, the reason being that he would then be able to represent to the court that he had done everything he could do to give the greatest benefit to the creditors of the estate. His settlement request was for one hundred percent of creditor claims, and for all administrative costs (and the amount of the Debtor's exemption). (Id. at 3:16:14 to 3:17:31.) . 11 U.S.C.A. § 521(1) delineates the items the debtor must file in a bankruptcy action, including a schedule of assets and liabilities. . Bankruptcy Code § 350 provides that: (a) After an estate is fully administered and the court has discharged the trustee, the court shall close the case. (b) A case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause. 11 U.S.C.A. § 350 (West 2006). . Rule 6007 of the Federal Rules of Bankruptcy Procedure also applies to abandon-ments and provides: (a) Notice of Proposed Abandonment or Disposition; Objections, Hearing. Unless otherwise directed by the court, the trustee or debtor in possession shall give notice of a proposed abandonment or disposition of property to the United States trustee, all creditors, indenture trustees, and committees elected pursuant to § 705 or appointed pursuant to § 1102 of the Code. A party in interest may file and serve an objection within 15 days of the mailing of the notice, or within the time fixed by the court. If a timely objection is made, the court shall set" }, { "docid": "3185946", "title": "", "text": "schedules to list the claim against Plutt as a potential cause of action estopped her from now pursuing the claim. 14. In November of 2004, the United States District Court for the District of Colorado dismissed the Lawsuit without prejudice. 15. On December 7, 2004, the Debtor filed her Motion to Reopen Bankruptcy Proceedings (the Motion) (Doc. # 13). The Motion requests that the Debtor’s chapter 7 case be reopened so that the Debtor could amend her schedules to include the personal injury claim that did not appear as an asset in her initial schedules. 16. On January 10, 2005, Plutt filed a Response opposing the Motion (Doc. # 16). Plutt asserts that the Debtor’s failure to list the cause of action in her initial schedules now precludes a reopening of her bankruptcy case so that the claim can be scheduled and subsequently prosecuted. 17. On February 9, 2005, the hearing on the Motion and Response was held. At the hearing, the Debtor testified that she does not intend to exempt the claim from creditors if the Motion is granted, but rather desires for the Trustee to analyze and, if appropriate, prosecute the claim. However, the Debtor also testified that in the event that the Trustee abandons the claim, and the Debtor then prosecutes the claim and recovers money, she would not commit to using the proceeds to pay creditors. 18. On February 24, 2005 a further hearing was held, at which time additional evidence was introduced and additional testimony was adduced. The Court took the matter under advisement and now rules on the Motion. II. DISCUSSION A. Discretion to Reopen the Bankruptcy Case Rests with this Court. § 350 of the Bankruptcy Code governs the Motion. § 350(b) provides that the Court may reopen a closed case in order to administer assets, accord relief to the debtor, or for other cause. 11 U.S.C. § 350(b) (2004) (emphasis added). The term “for other cause” is a broad term which gives the bankruptcy court discretion to reopen a closed estate or proceeding when cause for such reopening has been shown. Matter" }, { "docid": "20262108", "title": "", "text": "pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title. 28 U.S.C. § 1452(a). Removal of cases under § 1452(a) is possible only within “30 days after receipt, through service or otherwise, of a copy of the initial pleading setting forth the claim or cause of action sought to be removed.” Fed. R. Bankr.P. 9027(a)(3)(A); see also 28 U.S.C. § 1446(b) (\"The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.”). Section 1334 refers to 28 U.S.C. § 1334, \"Bankruptcy Cases and Proceedings,” which gives \"the district courts ... original and exclusive jurisdiction of all cases under [the Bankruptcy Code],” id. § 1334(a), and for \"original but not exclusive jurisdiction of all civil proceedings arising under [the Bankruptcy Code], or arising in or related to cases under [the Bankruptcy Code],” id. § 1334(b). Debtors did not choose option (2) by timely removing the State Court case — in whole or in part — to federal court. Debtors did not file their complaint for declaratory relief in the Florida Bankruptcy Court until April 2008, nearly four years after Creditors filed the State Court action, in December 2004. Thus, even if the Florida Bankruptcy Court had treated the complaint as a de facto removal under 28 U.S.C. § 1452(a), that removal would have been untimely. And the general removal statute, 28 U.S.C. § 1441, would not have applied; the State Court case, consisting only of state-law claims, was not one \"of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). As for option (3), 11 U.S.C. § 350 provides for the bankruptcy courts' administrative powers to open and close bankruptcy cases: (a) After an estate is fully administered and the court has discharged the trustee, the court shall close the case. (b) A case may be reopened in the" }, { "docid": "8886272", "title": "", "text": "Objecting Parties moved to dismiss the arbitration proceeding on the ground of judicial estoppel. [Id. at 45]. The Objecting Parties contend that because the Debtor has taken a position in his bankruptcy case (that he had no unliquidated causes of action at the time he filed his petition) contrary to the position he is taking in the arbitration (that he has a claim against the Objecting Parties), he is barred from pursuing his claim. On May 1, 2001, the Debtors filed the instant motion, requesting that the Court reopen their Chapter 13 case and allow them to amend their schedules to add the claim as an asset and to amend their Chapter 13 Plan. The Debtors suggest that this action would allow the Trustee to recover an additional amount of money that could be used to repay approximately $105,000 of unsecured debt, from which the Debtors received a discharge. The Objecting Parties contend that the Court should not allow the Debtors to reopen the case and amend their schedules because the Debtors acted in bad faith when they failed to disclose fully the existence of the claim on their schedules during their bankruptcy case. Conclusions op Law A. Whether the Objecting Parties Have Standing As a preliminary matter, the Court must determine whether the Objecting Parties have standing to appear and oppose the Debtors’ motion. The Court may consider the issue of whether a party has standing sua sponte. Bischoff v. Osceola County, Florida, 222 F.3d 874 (11th Cir.2000). Section 350(b) of the Bankruptcy Code provides that the Court may reopen a closed case in order to administer assets, accord relief to the debtor, or for other cause. 11 U.S.C. § 350(b). Bankruptcy Rule 5010 identifies the parties who may move the Court to reopen a case. Fed.R.BanKrP. 5010 (“a case may be reopened on motion of the debtor or other party in interest”). While neither § 350(b) nor Rule 5010 identify the parties who have standing to object to such a motion, it has been held that a “party in interest” may object to a motion to reopen a" }, { "docid": "16972536", "title": "", "text": "is an asset of the bankruptcy estate and that Ms. Lowery lacks standing to bring the lawsuit. In response, Ms. Lowery now moves to reopen her long closed bankruptcy case to schedule the P.I. Action as an asset of the estate so that a bankruptcy trustee can be substituted as a plaintiff in the lawsuit. The Motion was filed October 30, 2008. The state court has adjourned consideration of NYC’s motion to dismiss the P.I. Action pending this Court’s determination of the Motion. II. The relevant statute governing reopening of a bankruptcy case, 11 U.S.C. § 350(b), provides that “[a] case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.” The statute is phrased in the permissive and thereby commits the decision as to whether to reopen a bankruptcy case to the sound discretion of the bankruptcy judge. See Apex Oil Co. v. Sparks (In re Apex Oil Co.), 406 F.3d 538, 541-42 (8th Cir.2005); State Bank of India v. Chalsani (In re Chalsani), 92 F.3d 1300, 1307 (2d Cir.1996); Rosinski v. Boyd (In re Rosinski), 759 F.2d 539, 540-41 (6th Cir.1985); Hawkins v. Landmark Finance Co. (In re Hawkins), 727 F.2d, 324, 326 (4th Cir.1984). III. Upon the filing of a bankruptcy petition, an estate to be administered by a trustee is created that encompasses “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a). Upon the filing of Ms. Lowery’s bankruptcy petition, the P.I. Action became property of her bankruptcy estate even though she did not list it on her schedules or statement of financial affairs. Since the P.I. Action was not disclosed by Ms. Lowery, it could not have been administered or abandoned by a trustee. Accordingly, the P.I. Action remains property of the estate even after the closing of Ms. Lowery’s bankruptcy case. See 11 U.S.C. § 554(c) and (d). In an attempt to remedy the dilemma posed by NYC’s request in state court to dismiss the P.I. Action" }, { "docid": "8886273", "title": "", "text": "faith when they failed to disclose fully the existence of the claim on their schedules during their bankruptcy case. Conclusions op Law A. Whether the Objecting Parties Have Standing As a preliminary matter, the Court must determine whether the Objecting Parties have standing to appear and oppose the Debtors’ motion. The Court may consider the issue of whether a party has standing sua sponte. Bischoff v. Osceola County, Florida, 222 F.3d 874 (11th Cir.2000). Section 350(b) of the Bankruptcy Code provides that the Court may reopen a closed case in order to administer assets, accord relief to the debtor, or for other cause. 11 U.S.C. § 350(b). Bankruptcy Rule 5010 identifies the parties who may move the Court to reopen a case. Fed.R.BanKrP. 5010 (“a case may be reopened on motion of the debtor or other party in interest”). While neither § 350(b) nor Rule 5010 identify the parties who have standing to object to such a motion, it has been held that a “party in interest” may object to a motion to reopen a Chapter 11 case. See In re Ronald Koch, 229 B.R. 78, 81-82 (Bankr.E.D.N.Y.1999) (noting that § 1109(b) provides that a party in interest may raise and may appear and be heard on any issue in a Chapter 11 case). Despite the fact that § 1109(b) does not apply to a Chapter 13 case, this Court finds no reason to assume that the same standard of a “party in interest” should not be applied in a case under Chapter 13. Although the term “party in interest” is not defined in the Bankruptcy Code or Rules, § 1109(b) contains a nonexclusive list of examples of what persons or entities may be considered to be a party in interest, which list includes the debtor, the trustee, a creditors’ committee, an equity security holders’ committee, a creditor, an equity security holder or any indenture trustee. 11 U.S.C. § 1109(b). It is well established that the term is “to be construed broadly, in order to allow parties affected by a Chapter 11 case to appear and be heard.” In re" }, { "docid": "16972535", "title": "", "text": "of which she claimed as exempt under New York State law. Insofar as creditors, Ms. Lowery listed four unsecured creditors with aggregate claims of $13,249.90. On July 31, 2000, having concluded his inquiry into the financial affairs of Ms. Lowery and the location of property belonging to the estate, the former Trustee filed a “Report of No Distribution”. In other words, the former trustee concluded that there was no estate property available for distribution to creditors over and above the exempted property. An order of discharge was issued on October 2, 2000 and Ms. Lowery’s bankruptcy case was closed on October 11, 2000. Jury selection in the P.I. Action commenced on October 21, 2008. At or about that time, NYC informed the state court that it had recently learned of Ms. Lowery’s bankruptcy filing and that she failed to disclose the P.I. Action in her bankruptcy case. On or about October 24, 2004, NYC moved by order to show cause to, among other things, dismiss the P.I. Action on the grounds that the P.I. Action is an asset of the bankruptcy estate and that Ms. Lowery lacks standing to bring the lawsuit. In response, Ms. Lowery now moves to reopen her long closed bankruptcy case to schedule the P.I. Action as an asset of the estate so that a bankruptcy trustee can be substituted as a plaintiff in the lawsuit. The Motion was filed October 30, 2008. The state court has adjourned consideration of NYC’s motion to dismiss the P.I. Action pending this Court’s determination of the Motion. II. The relevant statute governing reopening of a bankruptcy case, 11 U.S.C. § 350(b), provides that “[a] case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.” The statute is phrased in the permissive and thereby commits the decision as to whether to reopen a bankruptcy case to the sound discretion of the bankruptcy judge. See Apex Oil Co. v. Sparks (In re Apex Oil Co.), 406 F.3d 538, 541-42 (8th Cir.2005); State Bank of India" }, { "docid": "717188", "title": "", "text": "the Barton doctrine applied ... because the bankruptcy case had been dismissed and the [TJrustee was holding the [DJebtor’s money simply as any other stake holder receiving a third party citation regarding a judgment debt- or.” (Motion, ¶ 10). As will be discussed, the belief as to the inapplicability of the Barton doctrine was misplaced and the Trustee was not holding the Debtor’s Funds like “any other stake holder.” Discussion A. Jurisdiction Federal courts have a duty to police their own jurisdiction over matters brought before them. Smoot v. Mazda Motors of America, Inc., 469 F.3d 675, 678 (7th Cir.2006). This matter involves a motion under section 350(b) of the Bankruptcy Code to reopen a closed chapter 13 case so the court can consider a creditor’s request for permission to continue a lawsuit against the chapter 13 trustee for an action he took during his administration of the Debtor’s estate. Under Section 350(b) of the Bankruptcy Code, “[a] case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. § 350(b). The court has jurisdiction to decide a motion to reopen. In re Redmond, 380 B.R. 179, 182 (Bankr.N.D.Ill.2007). Reopening a case is not mandatory. In re Bianucci, 4 F.3d 526, 528 (7th Cir.1993); In re Shondel, 950 F.2d 1301, 1304 (7th Cir.1991) (citing Hawkins v. Landmark Fin. Co., 727 F.2d 324, 326 (4th Cir.1984) and In re Thomas, 204 F.2d 788, 791 (7th Cir.1953)). Indeed, the decision to reopen a case for “other cause” lies within the discretion of the bankruptcy court. Shondel, 950 F.2d at 1304. Here, the Casino asserts that the cause to reopen this case is the need for this court to entertain the Casino’s request for permission to continue the Complaint against the Trustee pursuant to the Barton doctrine. The Barton doctrine takes its name from an 1881 Supreme Court decision, which held that “an equity receiver could not be sued without leave of the court that appointed him.” In re Linton, 136 F.3d 544, 545 (7th Cir.1998)" }, { "docid": "18510412", "title": "", "text": "that the scope of the discharge is final when entered — require qualification. They are true as long as the case remains a no-asset case. For reasons explained below, if the case is later reopened to administer previously undiscovered assets, then the Debtor's failure to list a creditor could result in a debt’s exception from discharge. But the Debtor can easily avoid this outcome by amending the schedules if and when the case is reopened to administer assets. It might give a debtor peace of mind to amend the schedules now so that he or she need not do it later. But reopenings to administer assets are rare, much rarer than motions of the present kind. And a debtor’s peace of mind alone does not justify the administrative burden that it would impose on the Court. . See Bankruptcy Rules 2002(e) and 3002(c)(5). . Therefore, to prevail under § 523(a)(3)(B) a creditor must prove that its debt is of a kind specified in § 523(a)(2), (4), or (6), that the debtor knew the identity of the creditor, and that the debt was not scheduled in time to permit timely filing of a proof of claim, timely request for a determination of dischargeability, or both. As an affirmative defense, the debtor can demonstrate that despite the untimely listing, the creditor \"had notice or actual knowledge of the case in time for such timely filing and request.” 11 U.S.C. § 523(a)(3)(B). . Section 350(b) of the Bankruptcy Code states, “[a] case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. § 350(b). . Rule 3002(c)(5) provides for this contingency: (5) If notice of insufficient assets to pay a dividend was given to creditors pursuant to Rule 2002(e), and subsequently the trustee notifies the court that payment of a dividend appears possible, the clerk shall notify the creditors of that fact and that they may file proofs of claim within 90 days after the mailing of the notice. Bankruptcy Rule 3002(c)(5). . In the normal" }, { "docid": "4634419", "title": "", "text": "30, 1988. The case was reopened by order filed on August 26, 1988 pursuant to the Trustee’s request in order to administer assets of the estate previously not scheduled by the Debtor. Plaintiff was reappointed Trustee. Plaintiff alleges that Defendant failed to schedule, and therefore, concealed his interest in a condemnation proceeding in California styled City of Thousand Oaks v. Charles Sueca, Case No. 77192, filed July 1, 1982, [a lawsuit the Defendant continues to prosecute] and that he has received a partial award of at least $19,900.00 in said condemnation proceeding which he also failed to disclose or turn over to Plaintiff. Defendant denies these allegations and alleges that the real property that is the subject of the condemnation proceeding was transferred by him prepetition to a third party, that he had no interest in the condemnation action when he filed bankruptcy, and that he has continued to prosecute the lawsuit only because he acquired an interest in the condemnation action by an agreement with the third party subsequent to his bankruptcy filing. Defendant further alleges that Plaintiffs causes of action are barred by the statute of limitations set forth in 11 U.S.C. § 727(e)(2), i.e., the Complaint was filed more than one year after the later of the date the case was closed or the date he received his discharge. Plaintiff asserts that the Complaint was timely filed in that the case has not been finally closed and the federal limitation period is tolled during the time of concealment of the asset. ISSUES 1) From what date does the statute of limitations period set forth in 11 U.S.C. § 727(e) run?; and 2) Is the § 727(e) statute of limitations period tolled for the period of time the Defendant fraudulently concealed assets of the estate? DISCUSSION AND CONCLUSIONS OF LAW Section 727(e)(2) of the Bankruptcy Code provides: “The trustee, a creditor, or the United States trustee may request a revocation of discharge— (2) under subsection (d)(2) or (d)(8) of this section before the later of— (A) one year after the granting of such discharge; and (B) the date" }, { "docid": "18531974", "title": "", "text": "have Narod’s fifth Chapter 13 bankruptcy petition, filed in the Eastern District of Pennsylvania, reopened so that it may be dismissed pursuant to 11 U.S.C. § 109(g) — the provision of the Bankruptcy Code governing the eligibility of repeat filers for relief under the Code. As discussed above, the bankruptcy court twice considered this request — on April 19, 1990, and on January 31, 1991 — and denied it. The April 19, 1990 order, which was unaccompanied by further written findings or opinion, stated: This case was closed on Dec. 12, 1989. Assuming arguendo that we may consider this motion as seeking to reopen this case, the instant motion does not seek to administer assets or accord relief to the Debtor, nor is there sufficient other ‘cause’ shown in a motion to reopen this case in a motion filed over four months after its closing. See 11 U.S.C. § 350(b). Relief against Arnold S. Narod and Bon nie 0. Narod, including sanctions, will be considered if they make any additional frivolous bankruptcy filings. The order of January 31, 1991 stated, in its entirety: “There is no basis at this late date to reconsider our Order of April 19, 1990, denying a very similar motion.” From the face of these orders, it appears that the bankruptcy court denied FNMA’s motions on the grounds that, (1) the motions were untimely, and (2) there was no legal basis to reopen Narod’s fifth bankruptcy case. I will review these considerations in turn. A. Three provisions of the Federal Bankruptcy Code and Rules govern the reopening of bankruptcy cases. Title 11, United States Code, Section 350(b), specifies the conditions under which bankruptcy cases may be reopened. It provides: § 350. Closing and reopening cases. (b) A case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause. 11 U.S.C. § 350(b). Federal Rule of Bankruptcy Procedure 5010 provides that section 350(b) may be invoked by motion of the debtor or other party in interest. Fed. R.Bank.P. 5010 (amended 1991). See" }, { "docid": "4624843", "title": "", "text": "the bankruptcy court abused its discretionary power in reopening the estate, because the trustee’s intended voiding actions are barred by the statute of limitations, and because the property the trustee seeks to administer is valueless. Finally, the debtors assert that the trustee’s motions to reopen should be barred by the equitable doctrine of laches. Discussion A. Trustee Standing Section 350(b) of the Bankruptcy Code, Title 11 U.S.C., empowers a bank ruptcy court to reopen a case “to administer assets, to accord relief to the debtor, or for other cause.” Rule 5010, Rules of Bankruptcy Procedure, provides that a case may be reopened “on motion of the debtor or other party in interest pursuant to § 350(b) of the Code.” The debtors assert that the trustee is not a “party in interest” within the meaning of Rule 5010, and thus lacks standing to petition for reopening. Debtors rely upon In re Ayoub, 72 B.R. 808 (Bankr.M.D.Fla.1987) and Matter of Paine, 127 F. 246 (W.D.Ky.1904) (construing section 2 cl. 8 of the 1898 Bankruptcy Act, 30 Stat. 546, the statutory predecessor of section 350(b)) for the proposition that trustees lack standing to reopen. These cases essentially hold that after an estate has been closed, the trustee has no cognizable interest because he is a former trustee whose rights and duties ended at the time of closing. . In re Ayoub, 72 B.R. at 812, Matter of Paine, 127 F. at 249. The court finds this reasoning unpersuasive. First, the argument is overly formalistic. Followed to its logical conclusion, it would also preclude creditors from seeking a reopening to administer undisclosed assets on the grounds that they would merely be former creditors. Moreover, it is established case law that a trustee’s powers are terminated only when the estate has been properly closed. It would be incongruous to permit a debtor who has failed to disclose assets to use this failure (and the subsequent erroneous closing) as a shield against reopening. The distinction between a “trustee” and a “former trustee” urged by the debtors is semantic rather than substantive, and does not effect a" }, { "docid": "4634421", "title": "", "text": "the case is closed.” 11 U.S.C. § 727(e)(2). Plaintiffs allegation is that, “the debtor acquired property that is property of the estate, or became entitled to acquire property that would be property of the estate, and knowingly and fraudulently failed to report the acquisition of or entitlement to such property, or to deliver or surrender such property to the trustee.” 11 U.S.C. § 727(d)(2). Bankruptcy Rule 7012(b) makes Rule 12(b) of the Federal Rules of Civil Procedure applicable to the Defendant’s motion. In re Edmonds, 924 F.2d 176 (10th Cir. 1991); see also 5A C. Wright & A. Miller, Federal Practice and Procedure § 1360 (2d ed. 1990). Further, because Defendant’s motion requests dismissal [for if limitations apply, Plaintiff has failed to state a claim upon which relief can be granted], the Court must assume all facts alleged in the Complaint to be true. Id.; see also In re Garafano, 99 B.R. 624, 627-28 (Bankr.E.D.Pa.1989). And, in considering a Rule 7012(b) motion, “dismissal is inappropriate unless plaintiff can prove no set of facts which would entitle him to relief.” Id. (citing In re Kelpe, 98 B.R. 479, 480 (Bankr.W.D.Mo.1989)). 1) Effect of Reopening.. A case is not closed until the estate is fully administered and the trustee has been discharged. 11 U.S.C. § 350(a). Further, a case may be reopened in order “to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. § 350(b). The legislative history to this section does not speak directly to the effect of reopening a case on the limitations periods set forth in the Bankruptcy Code; thus, the Court turns to a review of case law researched. No cases were found specifically dealing with the effect of reopening a case on the limitations period set forth in §§ 727(e)(1) or (2). However, reopening a case “put[s] the bankruptcy estate back into the process of administration. The original bankruptcy is revived including all the procedural and substantive rights of the debtor.” In re Cassell, 41 B.R. 737, 740 (Bankr.E.D.Va.1984) (citations omitted). If all rights of the debtor are reinstated, is it" }, { "docid": "19964830", "title": "", "text": "Ins. Co. v. Swift (In re Swift), 129 F.3d 792, 795 (5th Cir.1997). III. DISCUSSION The district court relied on this court’s decision in In re Superior Crewboats, Inc., 374 F.3d 330, to conclude as a matter of law that the equitable doctrine of judicial estoppel should apply to bar the Kanes from pursuing their claim, and as a result, that the Trustee’s motion to substitute himself as the real party in interest is moot. Also, Defendants argue for the first time on appeal that even if the Trustee’s motion to substitute himself as the real party in interest was improperly denied as moot, relying on our decision in Wieburg, 272 F.3d 302, it should be denied as untimely under Rule 17(a). Because we conclude that the district court asked too much of our decision in In re Superior Crewboats, Inc., we reverse and remand. Defendants’ Rule 17(a) argument should be presented first to the district court. A. Background Legal Principles Pursuant to the Bankruptcy Code, debtors are under a continuing duty to disclose all pending and potential claims. 11 U.S.C. § 521(1); In re Coastal Plains, Inc., 179 F.3d at 207-08. Generally, if a debtor fails to schedule an asset, and the trustee later discovers it, the trustee may reopen the bankruptcy case to administer the asset on behalf of the creditors. 11 U.S.C. § 350(b); 3 CollieR ON Bankruptoy § 350.03[1] (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.2008). As one of our bankruptcy courts has observed: It is not serendipitous that the Bankruptcy Code has an explicit provision that prevents the loss of assets that a debtor fails to disclose in [bankruptcy [schedules. It happens all the time, especially with claims. And when it does, cases are routinely reopened, in accordance with the statute, to administer those assets. In re Miller, 347 B.R. 48, 53 (Bankr.S.D.Tex.2006) (citations omitted). Section 541 of the Bankruptcy Code provides that virtually all of a debt- or’s assets, including causes of action belonging to the debtor at the commencement of the bankruptcy case, vest in the bankruptcy estate upon" }, { "docid": "7071492", "title": "", "text": "its defense in the personal injury ease may be affected by the reopening is insufficient to give it a direct interest in the Debtor’s bankruptcy case, and therefore, it lacked standing to oppose the motions to reopen.”). But this narrow procedural determination does not eliminate the need for the Court to independently consider whether the Trustee has shown sufficient cause for Debtor’s case to be reopened. That analysis is set forth below and, regardless of their standing to be heard, necessarily is animated to some extent by the objection of the Aaron Defendants. See, e.g., Sweeney, 275 B.R. at 733 (“the Court will necessarily address the substance of the State Court Action Defendants’ objections to the granting of such relief notwithstanding such defendants’ lack of standing to press such objections.”). Motion to Reopen Federal Rule of Bankruptcy Procedure 5010 provides that a “case may be reopened on motion of the debtor or other party in interest pursuant to § 350(b) of the Code.” Fed. R. Bankr.P. 5010. Section 350(b) of the Bankruptcy Code in turn provides that a case “may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. § 350(b). Before reopening a closed case, the Court should make the threshold determination that the movant meets one of the three articulated grounds set forth in Section 350(b). In re Lee, 356 B.R. 177, 180 (Bankr.N.D.W.Va.2006) (citations omitted). Bankruptcy Courts have broad discretion in deciding whether to open a closed case. In re Arana, 456 B.R. 161, 172 (Bankr.E.D.N.Y.2011) (citing In re Farley, 451 B.R. 235, 237 (Bankr.E.D.N.Y.2011) and In re Lowery, 398 B.R. 512, 514 (Bankr.E.D.N.Y.2008)). The movant bears the burden to show cause for reopening the case. In re Easley-Brooks, 487 B.R. 400, 406 (Bankr.S.D.N.Y.2013) (citing In re Otto, 311 B.R. 43, 47 (Bankr.E.D.Pa.2004)). The Trustee argues that the case should be reopened to allow it to administer assets and for “cause.” Trustee Reply, at ¶¶ 18-22. Administration of Assets A closed case may be reopened to “administer assets.” 11 U.S.C." }, { "docid": "18575686", "title": "", "text": "tractor/trencher which had been repossessed and sold leaving a deficiency of approximately $8,000.00. CCEC was not scheduled as a creditor nor listed in any other fashion in the bankruptcy proceedings. On May 17, 1984, Seism filed an application to reopen his bankruptcy estate for inclusion of CCEC as a creditor. This matter was set for hearing, evidence was submitted and the Court requested briefs. While not specifically stated in his application to reopen the bankruptcy estate, it is readily apparent that Seism’s desire to reopen is in order that the deficiency may be discharged. If CCEC had actual knowledge of the petition in bankruptcy prior to the closing of the estate, the debt would be discharged without reopening the estate, 11 U.S.C. § 523(a)(3)(A) , but Seism has adduced no evidence of such actual knowledge. In order to discharge the deficiency therefore, Seism must reopen the estate and amend the schedules to include CCEC as a creditor. CCEC argues that § 523(a)(3)(A) bars this debt from being discharged, even after amendment of schedules, and the reopening should accordingly be denied as it could serve no purpose. Section 350(b) of the Bankruptcy Code states that “[a] case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. § 350(b). This section is supplemented by Rule 5010 which provides “[a] case may be reopened on motion of the debtor or other party in interest pursuant to § 350(b) of the Code.” Fed.R.Bankr.P. 5010. On its face, § 350(b) appears to address the instant case, i.e. where a debtor requests that an estate be reopened to add a creditor and discharge the corresponding debt. Section 523(a)(3)(A) of the Code mitigates against this position, however, by denying a debtor the discharge of debts that were neither listed nor scheduled in time to permit a creditor to file a timely proof of claim unless the creditor had sufficient knowledge of the case to file a timely proof of claim. The seminal decision in such matters is Milando v." }, { "docid": "18745147", "title": "", "text": "MEMORANDUM DECISION PEDER K. ECKER, Bankruptcy Judge. Jerry Allen Gortmaker and Colleen Ann Gortmaker, hereinafter Debtors, filed a joint petition for relief in a Chapter 7 bankruptcy. As part of Debtors’ bankruptcy, they filed a complaint to avoid a lien of Avco Financial Services, hereinafter Creditor. Debtors allege the provisions of 11 U.S.C. § 522(f) in their Complaint. In responsive pleadings, Creditor objects to the timeliness of Debtors’ Complaint. This Court held a trial on Debtors’ Complaint and took the matter under advisement. This Bankruptcy Court makes the following Memorandum Decision based upon pleadings and evidence presented at trial and briefs submitted by counsel for the parties. FINDINGS OF FACT Debtors entered into a loan agreement with Creditor. As collateral for the loan, Creditor took a nonpossessory, nonpurchase-money security interest in Debtors’ household goods and furnishings. In Debtors’ bankruptcy petition, they claim property pledged as collateral exempt. Between the dates Debtors filed their bankruptcy petition and their discharge, they did not attempt a lien avoidance. Debtors requested to reopen their bankruptcy under 11 U.S.C. § 350 to file a complaint to avoid the lien of Creditor. This Bankruptcy Court granted Debtors’ request. DEBTORS’ ARGUMENTS 1. Debtors may avoid the fixing of a lien on an interest in property to the extent that such lien impairs an exemption to which Debtors would have been entitled under S.D.C.L. 43-45 if such lien is a non-possessory, nonpurchase-money security interest in household furnishings or goods that are held primarily for the personal, family, or household use' of Debtors or a dependent of Debtors. 2. Debtors maintain they can bring a complaint to avoid a lien before or after discharge because 11 U.S.C. § 350(b) provides: “A case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.” CREDITOR’S ARGUMENTS 1. A complaint to avoid a lien under 11 U.S.C. § 522(f) must be filed before the discharge has been granted. 2. Debtors be required to amend their bankruptcy Schedule B — 4 to show state versus federal exemptions. ISSUE" } ]

[ { "docid": "22359402", "title": "", "text": "made was not always well defined, their import is clear enough to preclude rejecting them as meaningless. Indeed, for tax purposes the Treasury may insist that such “deferred charges” be capitalized. See note 11, post. The line drawn in these two cases between inclusion of removal costs in compensation for a temporary taking of less than a lessee’s full term and their exclusion where the whole term has been taken is likewise based on a recognition of a difference in the degree of restriction of the condemnee’s opportunity to adjust himself to the taking. In United States v. General Motors Corp., 323 U. S. at 382, the Court, comparing a temporary with a fee taking, observed: “It is altogether another matter when the Government does not take his entire interest, but by the form of its proceeding chops it into bits, of which it takes only what it wants, however few or minute, and leaves him holding the remainder, which may then be altogether useless to him, refusing to pay more than the ‘market rental value’ for the use of the chips so cut off. This is neither the ‘taking’ nor the ‘just compensation’ the Fifth Amendment contemplates.” In United States v. Petty Motor Co., 327 U. S. at 379, the Court said: “There is a fundamental difference between the taking of a part of a lease and the taking of the whole lease. That difference is that the lessee must return to the leasehold at the end of the Government’s use or at least the responsibility for the period of the lease which is not taken rests upon the lessee. This was brought out in the General Motors decision. Because of that continuing obligation in all takings of temporary occupancy of leaseholds, the value of the rights of the lessees which are taken may be affected by evidence of the cost of temporary removal.” The Government argues that if petitioner’s testimony as to the value of its physical property were accepted, it could have no going-concern value because its average net earnings for the five years preceding the taking" } ]

[ { "docid": "21392967", "title": "", "text": "Osprey rested on theories of breach of contract, taking of private property, and entitlement to reimbursement. Plaintiff, in the instant case, contends that the court in Osprey would not have entertained these alternative theories through defendant’s motion to dismiss, discovery, cross-motions for summary judgment, and trial if the mere existence of a contract operated as a per se bar to the taking claim. Defendant distinguishes Osprey on the ground that the breach claim concerned a charter agreement among plaintiff, a third party, and the State of Oregon, rather than a contract directly obligating the United States. In the absence of an express contract with the United States that could have rendered plaintiffs taking claim beyond the boundary of plaintiffs available rights and remedies, defendant contends that Osprey is inapposite. That the circumstances confronting plaintiff involve an express contract with the Government is not fatal to plaintiffs Count IV taking claim. Although Osprey may be distinguished from the instant case in the manner defendant suggests, plaintiffs complaint recounts facts giving rise to the implication that the rights regarding the subject materials were not contemplated by the parties and reduced to writing. Furthermore, taking claims are not presumed to be foreclosed by claims for breach of express contract merely because the claims share the same factual background. See Prudential Ins. Co. v. United States, 801 F.2d 1295, 1300 n. 13 (Fed.Cir.1986) (citing Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949)); United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945) (proposing Fifth Amendment takings clause as alternative means for relief in action involving alleged breach of express lease agreement); see also Atlas Corp. v. United States, 895 F.2d 745 (Fed.Cir.1990) (reaching merits of claims for breach of express contract, breach of implied contract, and Fifth Amendment taking). Because the court cannot conclude that the contract conferred expressly upon defendant rights of possession, use, ownership, and alienation in the materials, and because plaintiff has alleged facts sufficient to support the converse, defendant’s motion does not preclude plaintiff from pleading" }, { "docid": "12512452", "title": "", "text": "which seize and injure private property. See, e.g., Kimball Laundry Co. v. United States, 338 U.S. 1, 3-4, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949) (ordering just compensation when the government took temporary possession of a laundry plant); United States v. General Motors Corp., 323 U.S. 373, 375, 65 S.Ct. 357, 89 L.Ed. 311 (1945) (requiring compensation from the government for using a portion of a building leased by the plaintiff). The cases relied on by the panel majority all involve a seizure of contraband or other violation of law. Neither Mr. Kam-Almaz nor his property has been accused of or implicated in any wrongdoing. In Acadia, supra, the seized property allegedly bore a counterfeit trademark. In AmeriSource Corp. v. United States, 525 F.3d 1149, 1150 (Fed.Cir.2008), drugs were seized pursuant to charges of “conspiracy, unlawful distribution of prescription pharmaceuticals, operating an unregistered drug facility, and conspiracy to commit money laundering.” In Bennis v. Michigan, 516 U.S. 442, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996), the Court upheld the forfeiture of an automobile that had been used in criminal activity, although the other owner of the automobile was innocent. These cases all relate to confiscation or seizure based on unlawful acts. In contrast, no wrong by Mr. Kam-Almaz or his computer was alleged by the government. It is incorrect to apply criminal law when no crime is alleged. Precedent supports Mr. Kam-Almaz’s pleading of a takings claim. III. Other Possible Remedies? The panel majority refers to “whatever claim Kam-Almaz may have against the United States,” as if he simply chose the wrong forum. However, Customs injury cannot be remedied by tort claim, for in Kosak the Court established that “the Tort Claims Act does not cover suits alleging that customs officials injured property that had been detained by the Customs Service.” 465 U.S. at 862, 104 S.Ct. 1519. As mentioned supra, the Kosak Court stated that “at least” the Tucker Act might provide a remedy. Id. at 861 n. 22, 104 S.Ct. 1519. Whatever the remedial theory, the government is not absolved of responsibility for its misfeasance in dealing with" }, { "docid": "6367435", "title": "", "text": "letters, but it failed to plead facts sufficient to allege affirmative misconduct on the part of GSA. Accordingly, as a matter of law, the court must grant the Government’s motion to dismiss Count II. 3. Count III (Takings Claim). The Just Compensation Clause of the Fifth Amendment to the United States Constitution provides, in part, “nor shall private property be taken for public use, without just compensation.” U.S. Const., Amend. V. The plaintiff bears the burden of demonstrating that a property interest exists. See Skip Kirchdorfer, Inc. v. United States, 6 F.3d 1573, 1582 (Fed.Cir.1993) (“To recover under the Takings Clause, a claimant with a recognized property interest must show that its interest was ‘taken.’ ”). Property rights include “the rights ‘to possess, use and dispose of [property].’ ” Id. at 1579 (quoting United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed. 311 (1945)); see also M & J Coal v. United States, 47 F.3d 1148, 1153 (Fed.Cir.1995). To the extent that the government permanently occupies physical property, however, it effectively destroys each of these rights. Id. GSA argues that because no termination of the Lease occurred in June 2001, DeMarco’s takings claim is based on a faulty assumption and must necessarily fail because no taking occurred. See Def. Mot. at 7-8; Def. Reply at 5. If the facts alleged in the Complaint, however, are construed in plaintiffs favor at this stage of litigation, it is not clear whether the Lease was terminated on March 25, 2003, as GSA maintains, or that termination was within GSA’s contractual rights, either at the time the CO sent the notice letters or when GSA actually vacated the property. Therefore, GSA’s assertion that no termination of the Lease occurred in June 2001 cannot sustain the burden imposed on the moving party by under CFCR 12(b)(6). In this case, Count III of the Complaint properly asserts a Fifth Amendment takings claim. See Compl. at 1IH 45-50. DeMarco had an interest in the property subject to the Lease. Moreover, the Complaint alleges that: (1) GSA remained in possession of the" }, { "docid": "22130944", "title": "", "text": "the government of cable television (CATV) cable and connection boxes on the roof of an apartment building was a taking under the traditional test). As Justice Marshall said in Loretto: “when the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred. In such a case, ‘the character of the government action’ not only is an important factor in resolving whether the action works a taking but also is determinative.” Id. at 426, 102 S.Ct. at 3171. In this context, ‘permanent’ does not mean forever, or anything like it. A taking can be for a limited term — what is ‘taken’ is, in the language of real property law, an estate for years, that is, a term of finite duration as distinct from the infinite term of an estate in fee simple absolute. (While called an estate for years, the term can be for less than a year. See generally Cribbet, Principles of the Law of Property 54 (3d ed. 1989).) In United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945), the government’s appropriation of the unexpired term of a warehouse lease was a taking; the fact that it was finite went to the determination of compensation rather than to the question of whether a taking had occurred. Accord, United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 (1946) (federal government acquired the remainder of a lease for a building); Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949) (federal government appropriated private business for public use during World War II; a taking). There is nothing ‘temporary’ about the wells the Government installed on plaintiffs’ property, in the sense in which we used it in referring to the parked truck of the lunchtime visitor. Years have passed since the Government installed the first wells. The wells are some 100 feet deep, lined with plastic and stainless steel, and surrounded by gravel and cement. Each well was capped with a cement casing lined with reinforcing steel" }, { "docid": "12512451", "title": "", "text": "and retained pursuant to the police power.” Maj. op. at 1371. However, this court has recognized that “it is insufficient to avoid the burdens imposed by the Takings Clause simply to invoke the ‘police powers’ of the state, regardless of the respective benefits to the public and burdens on the property owner.” Acadia Tech., Inc., Global Win Tech., Ltd. v. United States, 458 F.3d 1327, 1330, 1332-33 (Fed.Cir.2006) (“[A] taking does not result simply because the government acted unlawfully, nor does a takings claim fail simply because the government’s conduct is subject to challenge as unlawful.”). Although protection of the nation’s borders is a police activity, when the government in its performance injures an innocent person, that person is not required to “bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). Mr. Kam-Almaz is not excluded from access to his Fifth Amendment rights, for the Fifth Amendment applies to government actions which seize and injure private property. See, e.g., Kimball Laundry Co. v. United States, 338 U.S. 1, 3-4, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949) (ordering just compensation when the government took temporary possession of a laundry plant); United States v. General Motors Corp., 323 U.S. 373, 375, 65 S.Ct. 357, 89 L.Ed. 311 (1945) (requiring compensation from the government for using a portion of a building leased by the plaintiff). The cases relied on by the panel majority all involve a seizure of contraband or other violation of law. Neither Mr. Kam-Almaz nor his property has been accused of or implicated in any wrongdoing. In Acadia, supra, the seized property allegedly bore a counterfeit trademark. In AmeriSource Corp. v. United States, 525 F.3d 1149, 1150 (Fed.Cir.2008), drugs were seized pursuant to charges of “conspiracy, unlawful distribution of prescription pharmaceuticals, operating an unregistered drug facility, and conspiracy to commit money laundering.” In Bennis v. Michigan, 516 U.S. 442, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996), the Court upheld the forfeiture of an automobile that had" }, { "docid": "11135882", "title": "", "text": "there was no question that compensation would be required for the government’s interference with the use of the property.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 318, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987) (summarizing the decisions in Kimball Laundry Co. v. United States, 338 U.S. 1, 4-21, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949); United States v. Petty Motor Co., 327 U.S. 372, 377-81, 66 S.Ct. 596, 90 L.Ed. 729 (1946); and United States v. General Motors Corp., 323 U.S. 373, 379-384, 65 S.Ct. 357, 89 L.Ed. 311 (1945)). In this range of temporary takings cases, the Supreme Court “was concerned in each case with determining the proper measure of the monetary relief to which the property holders were entitled.” First English Evangelical Lutheran Church, 482 U.S. at 318, 107 S.Ct. 2378. The Commission’s theory of recovery is not based on a temporary appropriation of a flowage easement, likely in deference to the Federal Circuit’s decision in Cooper, which measured compensation in terms of timber destroyed. 827 F.2d at 763-64. Indeed, here, as in Cooper, the flowage easement was not taken on a permanent basis. 827 F.2d at 762-63. Instead, the court will assess the government’s acquisition of the flowage easement as a predicate closely attendant to the Commission’s property interest in timber. In effect, the temporary taking of a flowage easement resulted in a permanent taking of timber and thus timber value serves best as the measure of monetary relief to which the Commission is entitled. II. Causation The conclusion that an injury caused by governmental action was foreseeable “does not mean that issues surrounding causation are irrelevant. On the contrary, causation must be shown.” Moden, 404 F.3d at 1343 (citations omitted). In proving causation, “[i]t is well established that a taking occurs when a government action causes groundwater levels to rise and destroy surface agricultural use.” Alost v. United States, 73 Fed.Cl. 480, 506 (2006) (citations omitted). However, the Commission, as plaintiff, must demonstrate that the government’s actions were “the direct and proximate cause” of the harms to its" }, { "docid": "2843843", "title": "", "text": "failed to state a claim upon which relief could be granted and that the Court of Federal Claims lacked jurisdiction because the Modens’ claim sounds in tort. After the Court of Federal Claims permitted some discovery, the United States renewed its motion. On April 9, 2004, the Court of Federal Claims granted the motion and dismissed the complaint for lack of subject matter jurisdiction. The Court of Federal Claims first noted that, while it is authorized to exercise jurisdiction over takings claims, it does not have jurisdiction over claims that sound in tort. 60 Fed. Cl. at 279. Then, it cited Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed.Cir.2003), for the two-pronged test “that must be utilized in distinguishing a taking from a tort in inverse condemnation cases.” 60 Fed. Cl. at 282. “[F]irst, a property loss compensable as a taking only results when the government intends to invade a protected property interest or the asserted invasion is the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action .... ” Ridge Line, 346 F.3d at 1355. Second, “to constitute a taking, an invasion must appropriate a benefit to the government at the expense of the property owner, or at least preempt the owner’s right to enjoy his property for an extended period of time, rather than merely inflict an injury that reduces its value.” Id. at 1356. The Court of Federal Claims then examined the evidence in this case under the identified two-pronged test. Under the first part of the first prong, the Court of Federal Claims noted that the Modens did not allege an intentional invasion by the United States. 60 Fed. Cl. at 283. Characterizing the second part of the first prong as an inquiry into the “foreseeability” of damage, the Court of Federal Claims listed “three occurrences [that] would have had to have been foreseeable or predictable by the Air Force at the time of its authorized use of the chemical solvents.” Id. at 284-85. First, “during the 1940s and 1950s ... the government" }, { "docid": "20256365", "title": "", "text": "itself at plaintiffs’ expense or preempted plaintiffs’ right to enjoy their property for an extended period of time. Id. at 1356. In order to satisfy the second prong of the test, plaintiffs must prove that defendant’s interference with plaintiffs’ property rights “was substantial and frequent enough to rise to the level of a taking.” Id. at 1357; see also Moden, 404 F.3d at 1342 (holding that a takings claimant “must show that the invasion appropriated a benefit to the government at the expense of the property owner, or at least by preempting the property owner’s right to enjoy its property for an extended period of time, rather than merely by inflicting an injury that reduces the property’s value”). Plaintiffs must satisfy both prongs of the Ridge Line test to demonstrate that their claims are properly analyzed undertakings law. 1. Foreseeability of the Alleged Invasion of Plaintiffs’ Upland Parcels Plaintiffs do not claim that defendant intended to take their upland parcels. Plaintiffs must therefore demonstrate that the alleged invasion of their rights was the direct, natural, or probable result of defendant’s discharges. Ridge Line, 346 F.3d at 1355. Both foreseeability and causation are required elements of any physical takings claim. See Cary v. United States, 552 F.3d 1373, 1379-80 (Fed.Cir.), cert. denied, — U.S. —, 129 S.Ct. 2878, 174 L.Ed.2d 580 (2009) (“Foreseeability and causation are separate elements that must both be shown (when intent is not alleged).”) (citing Moden, 404 F.3d at 1343). In determining whether plaintiffs have met the first prong of the Ridge Line test, the court will first ascertain whether the injuries allegedly suffered by plaintiffs were a reasonably foreseeable consequence of the government’s actions at the time those actions occurred. Moden, 404 F.3d at 1343 (“However, proof of causation, while necessary, is not sufficient for liability in an inverse condemnation case. In addition to causation, an inverse condemnation plaintiff must prove that the government should have predicted or foreseen the resulting injury.”) (citation omitted). In short, plaintiffs must demonstrate that the government knew, or should have known, that its discharges would result in the alleged invasion" }, { "docid": "1777977", "title": "", "text": "12, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) (quoting United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946)); see also Narramore v. United States, 960 F.2d 1048, 1052 (Fed.Cir.1992); Perry v. United States, 28 Fed.Cl. 82, 84 (1993). To succeed under the Takings Clause to the Fifth Amendment, the plaintiffs must show that the government took their private property for public use without just compensation. See Adams v. United States, 391 F.3d 1212, 1218 (Fed.Cir.2004). A takings claim requires a two-step analysis in which a court first determines whether a plaintiff possesses a cognizable property interest in the subject of the alleged taking. Then, if the plaintiff does possess a property interest, the court decides if the governmental action at issue constituted a taking of that property. See id.; Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.), reh’g and reh’g en banc denied (2002), cert. denied, 538 U.S. 906, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003); Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374 (Fed.Cir.), reh’g and reh’g en banc denied (2000), cert. denied, 532 U.S. 941, 121 S.Ct. 1402, 149 L.Ed.2d 345 (2001). Therefore, to succeed, a takings plaintiff must have a legally cognizable property interest, such as the right of possession, use or disposal of the property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (citing United States v. Gen. Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945)); Karuk Tribe of Cal. v. Ammon, 209 F.3d at 1374-75; Skip Kirchdorfer, Inc. v. United States, 6 F.3d 1573, 1580 (Fed. Cir.), reh’g denied (1993). The power of a property owner to exclude “has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights.” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. at 435, 102 S.Ct. 3164. If a plaintiff has a valid property interest, the government “takes” that interest by destroying, physically occupying, or excessively regulating it for a public purpose. Boyle v. United States, 200 F.3d 1369," }, { "docid": "2843867", "title": "", "text": "the government to take property for public use, a taking for that purpose cannot be tortious or unlawful. We reject this conclusion. Although the government acts lawfully when, pursuant to proper authorization, it takes property and provides just compensation, the government’s action is lawful solely because it assumes a duty, imposed by the Constitution, to provide just compensation. When the government repudiates this duty, either by denying just compensation in fact or by refusing to provide procedures through which compensation may be sought, it violates the Constitution. In those circumstances the government’s actions are not only unconstitutional but unlawful and tortious as well. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 717, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999) (citations omitted). Nevertheless, as discussed below, the question before us today is whether evidence in the record before us raises a genuine issue of material fact sufficient to avoid summary judgment with regard to a takings claim. Whether the government’s actions separately give rise to a tort action is irrelevant to our disposition of this case. . Recently, we summarized the relevant aspect of Ridge Line as requiring that \"a property owner must prove that the asserted government invasion of property interests allegedly effecting a taking ‘was the predictable result of the government action,’ either because it was ‘the direct or necessary result’ of the act or because it was ‘within the contemplation of or reasonably to be anticipated by the government.” ' Vaizburd v. United States, 384 F.3d 1278, 1282-83 (Fed.Cir.2004) (quoting Ridge Line, 346 F.3d at 1356) (citing Sanguinetti, 264 U.S. at 150, 44 S.Ct. 264; John Horstmann Co., 257 U.S. at 146, 42 S.Ct. 58; Barnes, 538 F.2d at 871; Eyherabide, 345 F.2d at 570; Columbia Basin Orchard v. United States, 132 Ct.Cl. 445, 132 F.Supp. 707, 709 (1955); Cotton Land Co. v. United States, 109 Ct.Cl. 816, 75 F.Supp. 232, 233-34 (1948)). . The Court of Federal Claims looked to determine whether the government knew that TCE was a component of the chemical solvents and was a contaminant. That is too strict" }, { "docid": "11135847", "title": "", "text": "interest. See, e.g., Ridge Line, 346 F.3d at 1355. Under the intent-based test, a plaintiff must demonstrate either that “the government intendled] to invade a protected property interest” or that “the asserted invasion [was] the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.” Cary v. United States, 552 F.3d 1373, 1377 (Fed.Cir.2009) (quoting Ridge Line, 346 F.3d at 1355). With respect to the appropriation of plaintiffs property interest, the Federal Circuit has stated that “to constitute a taking, an invasion must appropriate a benefit to the government at the expense of the property owner, or at least preempt the ownerL’js right to enjoy his property for an extended period of time, rather than merely inflict an injury that reduces its value.” Ridge Line, 346 F.3d at 1356. Finally, the plaintiff must demonstrate that there are no intervening causes that would break the “chain of causation” between the governmental action and plaintiffs injury. Cary, 552 F.3d at 1380; Moden v. United States, 404 F.3d 1335, 1344 (Fed.Cir.2005) (“[Ijnjury may not be foreseeable if any intervening cause breaks the chain of causation.”). The Commission has acknowledged that it bears the burden of proof in this case, and correctly states that it must prove by a preponderance of the evidence the following factual elements 1. The United States released water from Clearwater Lake Dam that proximately and directly caused [the Commission’s] timber property to be subject to flooding; 2. The resulting flooding produced substantial damage to [the Commission’s] timber property; and 3. The United States (ie., through its actions deviating from the Authorized Water Control Plan for the Black River) either intended to and did take [the Commission’s] property, or it performed actions the natural consequence of which were to take [the Commission’s] property. Pl.’s Post-Trial Br. at 4-5. ANALYSIS I. Property Interest at Issue “[P]rivate property” for purposes of the Fifth Amendment may take many forms. Among other things, such property includes “property [that] has been dedicated by the State to public use.” California v. United States, 395 F.2d 261," }, { "docid": "8887197", "title": "", "text": "that does not touch on the destruction or appropriation of enemy property can sometimes give rise to a valid takings claim. See, e.g., Argent v. United States, 124 F.3d 1277, 1281-85 (Fed.Cir.1997) (holding that a private property owner may state a valid taking claim arising from military aircraft overflights). In such cases, the military merely carries out the sovereign’s eminent domain prerogative which, under our Constitution, the United States may not exercise without providing just compensation. Thus, military takings cases often ask courts to ascertain the precise point at which the military conduct complained of is no longer coextensive with the state’s civil power of eminent domain, but rather, enters the zone of conduct, outside the reach of the Takings Clause, where the United States appropriates the property of its enemies. Cf. Nat’l Bd. of YMCAs v. United States, 184 Ct.Cl. 427, 396 F.2d 467, 470 (1968) (“It is axiomatic that the fifth amendment is not suspended in wartime, but it is equally well recognized that a destruction of private property in battle or by enemy forces is not compensable.”). In order to decide whether the facts of any particular military takings case paint a picture cognizable as a compensable taking under the Fifth Amendment, courts have look[ed] to the general principles announced in the decisional law to find the narrow and sometimes indistinct line that separates losses that are necessary incidents of the ravages and burdens of war from those situations where the Government is obliged to pay compensation to the owner of private property that is taken for public use. Id. at 471. The decision of the Court of Claims in Perrin v. United States, 4 Ct.Cl. 543 (1868), aff'd 12 Wall. 315, 79 U.S. 315, 316, 7 Ct.Cl. 223, 20 L.Ed. 412 (1870), is a seminal case in that decisional law. While the phrase “enemy property” seems to have its origins as a term of art for prize courts, Perrin was the first case in which the outlines of an enemy property doctrine applicable to takings jurisprudence can be recognized. The facts of Perrin concerned the destruction" }, { "docid": "11135846", "title": "", "text": "entitled to compensation.”). Second, the Commission must establish that the government’s actions “amounted to a compensable taking of that property interest.” American Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1372 (Fed.Cir.2004). In clarifying this standard, this court has held that a plaintiff, to prove a compensable taking, must demonstrate that the government’s actions were the “direct and proximate cause” of the harms to its property interest. See Loesch v. United States, 227 Ct.Cl. 34, 645 F.2d 905, 913 (1981) (finding no such causation in the context of governmental action vis-a-vis a raised level of water on a landowner’s property). In an inverse condemnation ease such as this, where the landowner seeks to “reeover[ ] just compensation for a taking of his property when condemnation proceedings have not been instituted,” United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980), the Federal Circuit has added an intent-based test to the traditional inquiry into causation and imposed a stricter standard as to what constitutes an “appropriation” of plaintiffs property interest. See, e.g., Ridge Line, 346 F.3d at 1355. Under the intent-based test, a plaintiff must demonstrate either that “the government intendled] to invade a protected property interest” or that “the asserted invasion [was] the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.” Cary v. United States, 552 F.3d 1373, 1377 (Fed.Cir.2009) (quoting Ridge Line, 346 F.3d at 1355). With respect to the appropriation of plaintiffs property interest, the Federal Circuit has stated that “to constitute a taking, an invasion must appropriate a benefit to the government at the expense of the property owner, or at least preempt the ownerL’js right to enjoy his property for an extended period of time, rather than merely inflict an injury that reduces its value.” Ridge Line, 346 F.3d at 1356. Finally, the plaintiff must demonstrate that there are no intervening causes that would break the “chain of causation” between the governmental action and plaintiffs injury. Cary, 552 F.3d at 1380; Moden v. United States, 404 F.3d" }, { "docid": "16252415", "title": "", "text": "any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2000); United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). The Fifth Amendment to the United States Constitution provides in part that “private property [shall not] be taken for public use, without just compensation.” Because the government conducted no formal exercise of eminent domain, this case is for alleged “inverse condemnation.” See Moden v. United States, 404 F.3d 1335, 1342 (Fed.Cir.2005). Inverse condemnation is “a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.” Id. (quoting United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980)) (quotation marks omitted). The landowners rely on an analogy between the fires here and flooding in cases typified by Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed.Cir.2003), which set out a two part test that can be characterized as causation and appropriation. In the causation prong, it must be shown that “the government intended] to invade a protected property interest or [that] the asserted invasion [was] the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.” 346 F.3d at 1355 (citation removed). The landowners allege that two Forest Service policies constituted the authorized activities that caused the Cedar Fire. First, they cite the circa 1911 policy of suppressing all forest fires in the CNF and the nearly century long suppression of all or nearly all fires, instead of allowing them to consume the accumulated fuel load in the forest. Second, they cite the policy of allowing human visitors to enter the forest for recreational purposes. The fire, they say, was the direct, natural, probable result of these policies. To prevail the landowners must first show that the" }, { "docid": "2843852", "title": "", "text": "as a matter of law. R. of U.S.Ct. Fed. Cl. 56(c); Fed.R.Civ.P. 56(c). In reviewing the record, we must draw all justifiable inferences in favor of the party opposing summary judgment. Turner v. United States, 901 F.2d 1093, 1095 (Fed.Cir.1990). Furthermore, due to the fact-intensive nature of takings cases, summary judgment should not be granted precipitously. Yuba Goldfields, Inc. v. United States, 723 F.2d 884, 887 (Fed.Cir. 1983). 2. Analysis Inverse condemnation is a “shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.” United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980). It is a cause of action against the government to recover the value of property taken by the government without formal exercise of the power of eminent domain. Id. In Ridge Line we identified a two-part analysis that a claim for inverse condemnation invokes. An inverse-condemnation plaintiff first must show that treatment under takings law is appropriate. 346 F.3d at 1355. To do so, it must clear two hurdles. First, it must show either that the government intended to invade a protected property interest or that the asserted invasion is the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the activity. Id. Second, it must show that the invasion appropriated a benefit to the government at the expense of the property owner, at least by preempting the property owner’s right to enjoy its property for an extended period of time, rather than merely by inflicting an injury that reduces the property’s value. Id. at 1356. If treatment under takings law is appropriate, the inverse-condemnation plaintiff must then “show that it possessed a protectable property interest in what it alleges the government has taken.” Id. at 1355. We first address whether the Modens have identified a genuine issue of material fact with regard to whether treatment under takings law is appropriate. In this regard, the Modens do not attempt to show that the government actually intended to" }, { "docid": "20066095", "title": "", "text": "court found that the Government was acting in its “proprietary” rather than its “sovereign” capacity when it did so. Id. That is, the Navy’s imposition of a term of sale related to the Government’s behavior as a purchaser, not as a sovereign. Because the court characterized the Government’s behavior as commercial, it reiterated that the takings claim must fail. Id. at 414-15. Schooner Harbor timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (2006), as this is an appeal from a final judgment of the Court of Federal Claims. The Court of Federal Claims had jurisdiction pursuant to the Tucker Act. 28 U.S.C. § 1491(a)(1) (2006). The Tucker Act waives sovereign immunity and provides jurisdiction for certain types of claims, including, as relevant here, where there is a money-mandating provision on which the plaintiff may base its recovery. Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005). In this case, that provision is the Fifth Amendment. , Moden v. United States, 404 F.3d 1335, 1341 (Fed.Cir.2005). DISCUSSION “We review the Court of Federal Claims’ grant of summary judgment without deference.” GHS Health Maint. Org., Inc. v. United States, 536 F.3d 1293, 1296 (Fed.Cir.2008) (internal quotation marks omitted). Summary judgment is appropriate when, making all reasonable inferences in favor of the non-moving party, there exists no genuine issue of material fact for trial. See Ct. Fed. Cl. R. 56(c)(1); Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1370-71 (Fed.Cir.2004). The Fifth Amendment prevents the Government from taking private property for public use without just compensation. U.S. Const, amend. V. We have developed a two-part test to determine whether a taking has in fact occurred. First, as a threshold matter, the court must determine whether the claimant has established a property interest for purposes of the Fifth Amendment.... If the claimant fails to demonstrate the existence of a legally cognizable property interest, the courts [sic] task is at an end. Am. Pelagic, 379 F.3d at 1372 (citations omitted). “[T]he Constitution does not itself create or define the scope of ‘property’ interests protected by the Fifth" }, { "docid": "2119730", "title": "", "text": "Ridge Line Inc. v. United States, 346 F.3d 1346, 1355 (Fed.Cir.2003) (“Ridge Line”) (citing 9 Patrick J. Rohan & Melvin A Reskin, Nichols on Eminent Domain § 34.03[1] (3d ed. 1980 & Supp.2002)). Thus, when the Government challenges this court’s jurisdiction over a plaintiff’s inverse condemnation claim, arguing that it is merely a tort and therefore outside this court’s jurisdiction, the Federal Circuit requires that the trial court conduct a “two-part inquiry” to determine whether the alleged inverse condemnation claim is subject to the requirements of the Just Compensation Clause and within the court’s jurisdiction. See Ridge Line 346 F.3d at 1355. The first part of the Ridge Line inquiry requires the plaintiff to establish either that the federal government “intends to invade a protected property interest or the asserted invasion is the ‘direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.’ ” Id. (quoting Columbia Basin Orchard v. United States, 132 Ct.Cl. 445, 132 F.Supp. 707, 709 (1955) (emphasis added)). Second, the plaintiff must establish that the invasion “appropriate[s] a benefit to the government at the expense of the property owner, or at least preempts] the owner’s right to enjoy his property for an extended period of time, rather than merely inflict an injury that reduces its value.” Id. (emphasis added) (citations omitted); see also Banks v. United States, 69 Fed.Cl. 206, 212-13 (2006) (“To establish a takings claim here, plaintiffs must show that ... the [Government’s] activities ... were the likely cause of the [damage to plaintiffs’] property and that the resulting [ ] damage was foreseeable.” (internal citation omitted)). Because this inquiry is fact based, however, it is conducted after discovery, either on a motion for summary judgment or following trial. See Moden v. United States, 404 F.3d 1335, 1341-45 (Fed.Cir.2005) (applying the Ridge Line inquiry at the summary judgment stage, after determining the United States Court of Federal Claims had jurisdiction over the Just Compensation claim); Ridge Line, 346 F.3d at 1355-59 (remanding to the trial court to conduct the Ridge Line inquiry after trial);" }, { "docid": "2119729", "title": "", "text": "United States Supreme Court has stated that an inverse condemnation occurs where the federal government condemns property, without conducting an eminent domain proceeding. See Agins v. City of Tiburon, 447 U.S. 255, 258 n. 2, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (“Inverse condemnation should be distinguished from eminent domain. Eminent domain refers to a legal proceeding in which a government asserts its authority to condemn property. Inverse condemnation is ‘a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.’ ”) (quoting United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980)); see also Moden, 404 F.3d at 1342 (“Inverse condemnation is the cause of action against the government to recover the value of property taken where the government has not exercised the power of eminent domain.” (citation omitted)). The United States Court of Appeals for the Federal Circuit has recognized that “ ‘[i]nverse condemnation law is tied to, and parallels, tort law.’ ” Ridge Line Inc. v. United States, 346 F.3d 1346, 1355 (Fed.Cir.2003) (“Ridge Line”) (citing 9 Patrick J. Rohan & Melvin A Reskin, Nichols on Eminent Domain § 34.03[1] (3d ed. 1980 & Supp.2002)). Thus, when the Government challenges this court’s jurisdiction over a plaintiff’s inverse condemnation claim, arguing that it is merely a tort and therefore outside this court’s jurisdiction, the Federal Circuit requires that the trial court conduct a “two-part inquiry” to determine whether the alleged inverse condemnation claim is subject to the requirements of the Just Compensation Clause and within the court’s jurisdiction. See Ridge Line 346 F.3d at 1355. The first part of the Ridge Line inquiry requires the plaintiff to establish either that the federal government “intends to invade a protected property interest or the asserted invasion is the ‘direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.’ ” Id. (quoting Columbia Basin Orchard v. United States, 132 Ct.Cl. 445, 132 F.Supp. 707, 709 (1955) (emphasis added)). Second, the plaintiff" }, { "docid": "20256364", "title": "", "text": "exercise of sound judicial discretion may dictate that the motion should be denied, and the case fully developed.’ ”) (quoting McLain v. Meier, 612 F.2d 349, 356 (8th Cir.1979)). Although plaintiffs’ non-frivolous allegation of an uncompensated taking is sufficient to overcome defendant’s motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1), the court must nonetheless undertake a separate analysis to determine whether plaintiffs’ claims are most appropriately treated under takings law or as torts. See Ridge Line, Inc. v. United States, 346 F.3d 1346, 1355 (Fed.Cir.2003) (holding that a takings claimant “must establish that treatment under takings law, as opposed to tort law, is appropriate under the circumstances”). The Federal Circuit has adopted a two-pronged test to discover whether a physical taking has occurred. First, plaintiffs must demonstrate that defendant intended to invade a protected property interest or that the alleged invasion of plaintiffs’ property was the direct, natural, or probable result of defendant’s intentional actions. Ridge Line, 346 F.3d at 1355. Second, plaintiffs must demonstrate that defendant appropriated a benefit for itself at plaintiffs’ expense or preempted plaintiffs’ right to enjoy their property for an extended period of time. Id. at 1356. In order to satisfy the second prong of the test, plaintiffs must prove that defendant’s interference with plaintiffs’ property rights “was substantial and frequent enough to rise to the level of a taking.” Id. at 1357; see also Moden, 404 F.3d at 1342 (holding that a takings claimant “must show that the invasion appropriated a benefit to the government at the expense of the property owner, or at least by preempting the property owner’s right to enjoy its property for an extended period of time, rather than merely by inflicting an injury that reduces the property’s value”). Plaintiffs must satisfy both prongs of the Ridge Line test to demonstrate that their claims are properly analyzed undertakings law. 1. Foreseeability of the Alleged Invasion of Plaintiffs’ Upland Parcels Plaintiffs do not claim that defendant intended to take their upland parcels. Plaintiffs must therefore demonstrate that the alleged invasion of their rights was the direct, natural," }, { "docid": "2119726", "title": "", "text": "law] provides the predicate for its jurisdiction, and lays to rest for purposes of the ease before it the question of whether the [source of law] on its merits provides a money-mandating remedy.” Fisher, 402 F.3d at 1173. In this case, the First Amended Complaint properly invokes the court’s subject matter jurisdiction, as it states: “This is a claim seeking compensation from the United States for the taking of private property for public use pursuant to Amendment V of the U.S. Constitution.” First Am. Compl. ¶ 1; see also Moden v. United States, 404 F.3d 1335, 1341 (Fed.Cir.2005) (“Thus, to the extent [Plaintiffs] have a nonfrivolous takings claim founded upon the Fifth Amendment, jurisdiction under the Tucker Act is proper.”); Murray v. United States, 817 F.2d 1580, 1583 (Fed.Cir.1987) (“[T]he ‘just compensation’ required by the Fifth Amendment has long been recognized to confer upon property owners whose property has been taken for public use the right to recover money damages from the government.”). The First Amended Complaint, however, does not allege when the named Plaintiffs became property owners in the St. Bernard or Orleans Parishes, an essential fact to establish standing. See United States v. Dow, 357 U.S. 17, 20-21, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958) (holding that a plaintiff seeking just compensation for a taking under the Fifth Amendment must be the owner of the property at the time of the taking); Cavin v. United States, 956 F.2d 1131, 1134 (Fed.Cir.1992) (“Without undisputed ownership of the [] property [at issue] at the time of the takings, [plaintiffs] cannot maintain a suit alleging that the Government took their property without just compensation.” (citing Dow, 357 U.S. at 20-21, 78 S.Ct. 1039)); Lacey v. United States, 219 Ct.Cl. 551, 595 F.2d 614 (1979) (“The person entitled to compensation for a taking of property by the Government is the owner of the property at the time of the taking.” (citation omitted)). Accordingly, the court will afford the named Plaintiffs leave to further amend to satisfy this jurisdictional requisite. See RCFC 15(a) (“a party may amend the party’s pleading once as a" } ]

[ { "docid": "13834964", "title": "", "text": "of the demolition and in our case the physical changes spoken of in Bailey were certainly being made. It would indeed be ludicrous to apply a principle which includes a replacement value to a case where the insured was himself already in the process of paying a wrecker to do what the fire did for him for nothing. To allow almost a quarter of a million dollars to be paid for buildings that were valueless and whose duration of existence was governed solely by the rapidity of the swing of the wrecker’s ball which was operating at the behest of the insured and with the acquiescence of the mortgagee would indeed produce a grossly inequitable result. We are fully cognizant of the Pandora Box that can be opened by allowing the amount of loss to be determined by the relative value to the insured at the time of loss and we are completely aware that the injection of such considerations may “open a field of speculation and conjecture that would cloud the issue of actual loss in a maze of collateral issues” (American Ins. Co. v. Treasurer School District No. 37, 273 F.2d 757 at 759 (10th Cir. 1959). It is this awareness that causes us to reiterate the continuing viability and general applicability of the “actual cash value” rule and to highlight the narrow grounds for our decision. We cannot however be compelled by hard and fast rules to produce an unjust result where an exception is wholly and undeniably warranted. We therefore find that actual cash value is not the proper criteria for determining the amount of loss for property which is in the process of being demolished and whose demolition at the time of loss is no longer a matter of conjecture or speculation and we hold that although the insurance policies were in effect at the time of loss the mortgagee having met its obligations, there is nevertheless no compensable loss in view of the fact that there is no value to buildings in the process of demolition. Summary judgment for defendant in regard to the" } ]

[ { "docid": "13748672", "title": "", "text": "We proceed therefore to consideration of the basic underlying issue as to whether the court erred in determining loss on the basis of market value rather than by reference to replacement value new less depreciation. Plaintiff relies heavily upon our decision in Knuppel v. American Insurance Company, 7 Cir., 269 F.2d 163, a case involving fire loss on a restaurant-tavern building under an identical policy provision. Illinois law governed in Knuppel and we held that the trial court’s conclusions of law correctly recognized that under a controlling Illinois decision (Smith for Use of Inter-Ocean Casualty Co. v. Allemannia Fire Insurance Co., 219 Ill.App. 506) “actual cash value” as used in the indemnity clause of a fire insurance policy “means reproduction value less depreciation for age”. But the instant case must be decided with reference to the law of Wisconsin. And our comment in Knuppel distinguishing McAnarney v. Newark Fire Ins. Co., 247 N.Y. 176, 159 N.E. 902, 56 A.L.R. 1149, is of no aid to plaintiff here. No case has been cited by the parties where the Wisconsin Supreme Court has had occasion to adjudicate the precise question here involved. Our own research has produced none. An examination of two Wisconsin cases where “actual cash value” of property was in question reveals that the court has approved consideration of other factors in ascertaining such value and has not limited the trier of the facts to consideration of replacement value new less depreciation. Engh v. Calvert Fire Insurance Company, 266 Wis. 419, 63 N.W.2d 831, 834, involved a collision loss under an automobile insurance policy which limited the insurer’s liability to the “actual cash value” of the insured truck. Although it approved adoption by the trial court of the replacement cost new less depreciation formula for determining loss the Wisconsin court stated: “The policy issued to the plaintiff by the defendant limited the insur er’s liability to ‘actual cash value’ of the truck. The measure of liability in this type of situation is the difference between the value of the property immediately before the loss and its value immediately afterwards. The" }, { "docid": "13834960", "title": "", "text": "that actual cash value means reproduction value less depreciation and not market value. In Knuppel the Court held that the intent of plaintiff to tear down the structure had no bearing on the actual cash value. Firstly, there was conflicting testimony in Knuppel as to the intention to wreck the building, the plaintiff testifying that he was considering various possibilities and was undecided at the time of the loss. Secondly, we find a distinct difference between an expressed interest in wrecking the insured property and the actual implementation of that decision and the occurrence of the loss while that wrecking was actually taking place. In First National Bank in Chicago Heights v. Home Ins. Co., also utilized by plaintiff, decided by this Court and affirmed by the 7th Circuit, 350 F.2d 577 (1965) the insured had expressed his intention to demolish the insured building but the case nowhere discusses the actual effect of an express intention to demolish on actual cash value. Plaintiff also cites, along with cases that attest to the the general applicability of the actual cash value criteria of reproduction value less depreciation, First National Bank of Highland Park v. Bos ton Insurance Co., 17 Ill.App.2d 159, 149 N.E.2d 420 (1st Dist. 1958). In that case the insured had entered into a contract to sell the property for $19,000.00 of which he had received $3,000.00 at the time of the fire. The insurance on the property totaled $46,750.00 and there was evidence showing a replacement value of over $200,000.00 and judgment was entered in the latter amount. Plaintiff in our case therefore analogizes that only replacement value less depreciation can be considered although another value has been pinpointed; in First the actual sale price, in our case a zero value given the demolition in progress. We believe that First is also distinguishable on the grounds that there is a vast difference between an executory sales contract which retains the insured property intact and a contract to demolish which is in the process of being executed. Finally there are a number of cases which indicate that the exceptions" }, { "docid": "15002596", "title": "", "text": "the loss is covered and subject to the section 5(e) total loss provision. The relevant question therefore becomes whether a non-covered peril was the predominant cause of the loss. This contested issue of fact has not been addressed by the district court. The district court did not address the total loss provision under section 5(e), in stead granting summary judgment to Allstate based on ACV under section 5(b). Additionally, because the issue was not presented to it, the district court did not evaluate the applicability of section 5(e) based on whether the Bradleys’ loss was predominantly caused by a covered peril, as required by section 23. Accordingly, we remand so that the district court may evaluate the causation issues and ascertain the applicability of the section 5(e) total loss provision. 2. Louisiana Insurance Law: Actual Cash Value The district court found that the ACV of the Bradleys’ home was $97,000 because the market value of the Bradleys’ home at the time that it was destroyed did not exceed $97,000. Allstate contends that the district court correctly determined the ACV of the Bradleys’ home based on its pre-storm value and appropriately held that they were not entitled to recover further payment under their homeowners policy. The Bradleys argue that ACV is properly calculated as the replacement value of the home less depreciation, but that — regardless—ACV is not the correct measure of their potential recovery. “The touchstone for ... determining actual cash value is the basic principle that an adequately insured person should incur neither economic gain nor loss when his property is destroyed.... ” Bingham v. St. Paul Ins. Co., 503 So.2d 1043, 1045 (La.App. 2 Cir.1987). The homeowners policy does not define ACV. Louisiana law defines ACV as “reproduction cost less depreciation.” Hackman v. EMC Ins. Co., 07-552, p. 7-8 (La.App. 5 Cir. 3/25/08); 984 So.2d 139, 143 (citing Real Asset Mgmt., 61 F.3d at 1228 n. 7); see also La. Dept. Ins., Insurance Bulletin No. 06-06 (“ACV is the amount needed to repair or replace the damaged or destroyed property, minus the depreciation.”). ACV is determined by calculating" }, { "docid": "18206099", "title": "", "text": "on summary judgment.” Riley-Stabler Construction Co. v. Westinghouse Electric Corp., 5th Cir., 401 F.2d 526, 527 (1968); see also 3 Barron and Holtzoff, Federal Practice and Procedure (Wright rev.) Section 1232.2. As noted in Consolidated Electric Co. v. United States, 9th Cir., 355 F.2d 437 (1966), a correct resolution of an issue of this nature depends largely upon an opportunity to observe the demeanor of the witnesses: “When an issue requires determination of state of mind, it is unusual that disposition may be made by summary judgment . . It is important, and ordinarily essential, that the trier of fact be afforded the opportunity to observe the demeanor of a witness whose subjective motive is at issue.” Id. at 438-439. Factual matters, such as attempted reconciliation, pendency of a divorce action, frequency and duration of absences from home, and financial responsibility are significant as they re- fleet the parties’ claimed intent. Had the affidavits clearly and without conflict revealed the affiants’ intent, a contrary holding might be warranted. In view of the different interpretations placed upon the facts of this case, summary judgment should not be granted on this issue. The second area of disagreement concerns the amount of compensation payable in the event that this loss is found covered by the policy. Plaintiff claims that this is a “valued” policy and that the valuations found in the annexed “schedule” are binding upon the insurer. It is defendants’ position that this is an “open” policy: its liability, if any, is limited to the actual cash value of the missing items. A “valued” policy has been defined as “one which places a valuation upon the underwritten property by way of liquidated damages for the purpose of avoiding a subsequent valuation of the property in case of loss.” Gerhard v. Boston Insurance Co., E.D.Pa., 99 F. Supp. 247, 250 (1951). Holding that summary judgment for the insured was required, the court in American Insurance Co. v. Gentile Bros. Co., 5th Cir., 109 F.2d 732 (1940), found that a “valued” policy was clearly indicated by the terms of the contract: “If there is" }, { "docid": "13405838", "title": "", "text": "F.Supp. at 987; see also Aetna Casualty & Sur. Co. v. Yates, 344 F.2d 939, 940 (5th Cir.1965) (calling the term “all-risk” a misnomer). An all-risk policy does not cover risks that are either specifically excluded from coverage by a provision in the policy or losses that occur as a result of the insured’s fraud or other misconduct. Essex House, 404 F.Supp. at 993; C.H. Leavell & Co. v. Fireman’s Fund Ins. Co., 372 F.2d 784, 787 (9th Cir.1967). In addition, an all-risk policy, like any other insurance policy, insures only against fortuitous losses. Essex House, 404 F.Supp. at 987; Compagnie Des Bauxites De Guinee v. Insurance Co. of N. Am., 554 F.Supp. 1075, 1080 (W.D.Pa.1983), rev’d on different grounds, 724 F.2d 369 (3d Cir.1983). In order to withstand defendant’s motion for summary judgment, plaintiff was' required to present evidence (1) that it sustained a physical loss and (2) that the loss was the result of a fortuitous event. Harbor House Condominium Ass’n v. Massachusetts Bay Ins. Co., 703 F.Supp. 1313, 1317 (N.D.Ill.1988), aff'd, 915 F.2d 316 (7th Cir.1990). In granting defendant’s motion for summary judgment, the district court adopted the recommendation of the magistrate judge, who found that plaintiff’s removal of the ACMs from Sander Hall “was not even remotely fortuitous,” J.A. 247, because plaintiff voluntarily elected to demolish the building despite the knowledge that removal of the ACMs was required in order to effectuate the demolition. The magistrate judge also found that because plaintiff knew, or should have known, prior to the start of the asbestos removal process, that Sander Hall would sustain significant damage as a result of the removal process as well as the significant amount of ACMs to be removed, there was no element of surprise, nor anything unexpected, about the property damage incurred by plaintiff. Accordingly, the magistrate judge found, and the district court agreed, that there was no fortuitous event invoking the coverage supplied by plaintiffs all-risk insurance policy. Plaintiff argues that in reaching this conclusion, the district court improperly construed the scope of the fortuity exception. The question of whether plaintiffs removal" }, { "docid": "15846086", "title": "", "text": "to the applicable standard of proof to establish “actual cash value”. While the parties were in agreement that since the policies were issued in New Jersey, the law of that ~state controlled, the difficulty presented itself that their research had failed to disclose a New Jersey decision defining the standard of proof establishing “actual cash value”. Under the circumstances the trial judge was constrained to resort to general applicable principles to roach a conclusion consistent with New Jersey law. The Continental Assurance Co. v. Conroy, 3 Cir., 1954, 209 F.2d 539. The plaintiffs urged that New Jersey would subscribe to the view prevailing in Pennsylvania that “Actual cash value in a policy of insurance means what it would cost to replace a building or a ■chattel as of the date of the fire”, Fedas v. Insurance Co. of Pennsylvania, 1930, 300 Pa. 555, 562, 151 A. 285, 288. The defendants contended that New Jersey would subscribe to the New York rule (McAnarney v. Newark Fire Ins. Co., 1928, 247 N.Y. 176, 181, 159 N.E. 902, 903, 56 A.L.R. 1149, which permits the widest latitude on the ascertainment of “actual cash value” so that evidence is admissible not only as to cost of reproduction but “as [to] any other fact reasonably tending to throw light upon the subject.” That the trial judge was persuaded by the defendants to their view is conclusively demonstrated by the affirmance of defendants’ second point for charge (set forth in Note 7, infra) which is an almost verbatim quotation from the McAnarney opinion, and the wide and sweeping latitude of the testimony adduced. . Hormel v. Helvering, 1941, 332 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037; Dowell, Inc. v. Jowers, 5 Cir., 1948, 166 F.2d 234, 2 A.L.R.2d 442, certiorari denied, 1948, 334 U.S. 832, 68 S.Ct. 1346, 92 L.Ed. 1759. . For example, the trial judge affirmed Defendants’ Point 2: “In determining the actual cash value of the property here involved, you may consider every fact and circumstance which would logically tend to the formation of a correct estimate of the loss, including the" }, { "docid": "13834961", "title": "", "text": "of the actual cash value criteria of reproduction value less depreciation, First National Bank of Highland Park v. Bos ton Insurance Co., 17 Ill.App.2d 159, 149 N.E.2d 420 (1st Dist. 1958). In that case the insured had entered into a contract to sell the property for $19,000.00 of which he had received $3,000.00 at the time of the fire. The insurance on the property totaled $46,750.00 and there was evidence showing a replacement value of over $200,000.00 and judgment was entered in the latter amount. Plaintiff in our case therefore analogizes that only replacement value less depreciation can be considered although another value has been pinpointed; in First the actual sale price, in our case a zero value given the demolition in progress. We believe that First is also distinguishable on the grounds that there is a vast difference between an executory sales contract which retains the insured property intact and a contract to demolish which is in the process of being executed. Finally there are a number of cases which indicate that the exceptions to the “actual cash value” rule in demolition cases, increases in viability in proportion to the proximity and certainty of the demolition and decreases in acceptance in proportion to the remoteness and indefiniteness of demolition. In Board of Education of Hancock County v. Hartford Fire Ins. Co., et al., 124 W.Va. 163, 19 S.E.2d 448 the school involved therein was to be replaced when a fire occurred. A contract was made to remove the old school and build a new one, the contractor was notified of the day when the school would be vacated and it was requested that the contractor proceed with the demolition. The Court approved of the general actual cash value rule but found the case to be an exception given the binding contract to demolish. This reasoning applies, a fortiori in our ease where the actual wrecking was in progress. In Bailey v. Gulf Insurance Co., 406 F.2d 47 (10th Cir. 1969), the Court held that existence of a city resolution declaring the building to be a nuisance and ordering the" }, { "docid": "500607", "title": "", "text": "payment of replacement costs. Because Knight did not comply with this policy term, Maryland’s obligation to pay replacement costs was not triggered under the policy. b. Estoppel Knight alternatively contends Maryland should be estopped from requiring him to replace the building before receiving the replacement cost, because it is unreasonable to require an insured to pay the costs of replacing an insured budding without the benefit of any insurance money to pay for the construction. This may be true, but it is clear from both the terms of the policy and the facts of this ease, that under the Maryland policy an insured may receive the actual cash value of the loss immediately. These funds may be used to make repairs or replacement. Similar replacement cost policy provisions have repeatedly been found enforceable and free from ambiguity. O-So Detroit, Inc. v. Home Ins. Co., 973 F.2d 498 (6th Cir.1992); Dickler v. CIGNA Property and Gas. Co., 957 F.2d 1088 (3rd Cir.1992); Kolls v. Aetna Cas. and Sur. Co., 503 F.2d 569 (8th Cir.1974); Lerer Realty Corp. v. MFB Mut. Ins. Co., 474 F.2d 410 (5th Cir.1973). Knight in fact received slightly more than the actual cash value of his loss within 30 days of submitting his sworn statement of loss. Because of a dispute between Knight and the loss payee on the policy, Knight could not gain access to these funds. Nevertheless, Maryland made payment of the actual cash value of the loss to the appropriate parties, which payment could have been immediately applied toward the repair and replacement. c. California Insurance Code Section 2070 Knight finally contends the policy’s replacement cost provision violates Cal. Ins. Code § 2070, which requires all fire insurance policies to be on the “standard form” or in a form substantially equivalent or more favorable to the insured. Cal. Ins.Code § 2070. The requirements of the standard form are set out in Cal. Ins.Code § 2071, and provide in pertinent part as follows: The amount of loss for which this company may be liable shall be payable 60 days after proof of loss ... is" }, { "docid": "13834959", "title": "", "text": "$50,000.00 policy on the buildings and that $41,640.51 is due plaintiff from each company ($41,640.51 x 6 = $249,843.06 — mortgage balance). The premise that “actual cash value” rather than market value or relative value will be determinative of the amount of loss is a valid one in the usual case, given the difficulty that arises in permitting incidental considerations to be injected into evaluation. We do not believe that it ought to be applied in this case. To award $249,843.06 for a fire loss to buildings that were in the process of being wrecked with the knowledge of the plaintiff and pursuant to a firm contract which also gave the wrecker ownership of the salvage would produce an incongruous and inequitable result. Plaintiff cites various cases to the proposition that actual cash value is the only criteria determinative of the amount of loss even where there was an expressed intention of wrecking the insured location. Plaintiff relies heavily on Knuppel v. American Insurance Co., 269 F.2d 163 (7th Cir.1959) in Support of its contention that actual cash value means reproduction value less depreciation and not market value. In Knuppel the Court held that the intent of plaintiff to tear down the structure had no bearing on the actual cash value. Firstly, there was conflicting testimony in Knuppel as to the intention to wreck the building, the plaintiff testifying that he was considering various possibilities and was undecided at the time of the loss. Secondly, we find a distinct difference between an expressed interest in wrecking the insured property and the actual implementation of that decision and the occurrence of the loss while that wrecking was actually taking place. In First National Bank in Chicago Heights v. Home Ins. Co., also utilized by plaintiff, decided by this Court and affirmed by the 7th Circuit, 350 F.2d 577 (1965) the insured had expressed his intention to demolish the insured building but the case nowhere discusses the actual effect of an express intention to demolish on actual cash value. Plaintiff also cites, along with cases that attest to the the general applicability" }, { "docid": "13834963", "title": "", "text": "building to be demolished had no bearing on its value for fire insurance purposes. There is however a difference between the effect on cash value of a mere “legal duty” to demolish and the actual demolition being embarked upon as well as a difference between being forced into demolition by a city resolution and the voluntarily embarkation upon demolition. The Court however did state that: Indeed, in an analogous situation in which an owner was also under a legal duty to demolish an insured structure, this court, applying Oklahoma law, determined that at least until physical changes were made in fulfillment of the legal obligation to destroy the building, the insurer could not use the owner’s legal duty as a shield against the payment of damages. [See American Home Fire Assurance Co. of New York v. MidWest Enterprise Co., 189 F.2d 528 (10th Cir. 1951)] 406 F.2d at 48. Thus we see that the closer intention comes to reality the more apt the Court is to consider the valuelessness of the insured building in view of the demolition and in our case the physical changes spoken of in Bailey were certainly being made. It would indeed be ludicrous to apply a principle which includes a replacement value to a case where the insured was himself already in the process of paying a wrecker to do what the fire did for him for nothing. To allow almost a quarter of a million dollars to be paid for buildings that were valueless and whose duration of existence was governed solely by the rapidity of the swing of the wrecker’s ball which was operating at the behest of the insured and with the acquiescence of the mortgagee would indeed produce a grossly inequitable result. We are fully cognizant of the Pandora Box that can be opened by allowing the amount of loss to be determined by the relative value to the insured at the time of loss and we are completely aware that the injection of such considerations may “open a field of speculation and conjecture that would cloud the issue of actual" }, { "docid": "21348941", "title": "", "text": "F.2d 383, 385, uses, the following language, with which we agree: “We think the true test, in this and similar cases, is the intention of the taxpayer. If he intends, at the time of purchase, to demolish and rebuild, then the cost of so doing must be considered as part of capital investment, which is consistent with the statute and the regulation.” In Liberty Baking Co. v. Heiner, 37 F.2d 703, 704, the court in the Third Circuit says: “The court in its findings and conclusions held that this item was not a deductible loss. The court found that the property, as it stood, was bought for the purpose of enlarging the plant. That there was no loss sustained because the demolition which was in contemplation at the time the property was bought. The court concluded that this situation was directly covered by article 142 of Regulation 45, to the effect that, when a taxpayer buys real estate upon which is located a building which he proceeds to raze in view of erecting another, it will be considered that the taxpayer has sustained no deductible loss by reason of the demolition of the old building, and no deductible expenses on account of the cost of removal; that the value of the real estate, exclusive of old improvements, is presumably equal to the purchase price of the land and building, plus the cost of removal of the old. While the razing of the buildings in this case was somewhat deferred, we think the conclusion of the court was correct.” Louis Pizitz Dry Goods Co. v. Commissioner, 22 B.T.A. 161; Lansburg & Bro., Inc., v. Commissioner, 23 B.T.A. 66. Counsel for plaintiff points to the value allocated to these buildings when purchased and says that the court must not look beyond the consideration involved in the purchase and the extinction of value when the buildings were demolished. But the value of the buildings when purchased and’ the fact that they were producing a fair return on the allocated value is immaterial. They were nevertheless useless when the taxpayer carried out its intention" }, { "docid": "13834958", "title": "", "text": "the insurer had already been informed by the mortgagor and that the policy was not null and void since no request for a higher premium had been made. On the liability issue we therefore find for plaintiff. III. The finding, in legal terms, of liability on the part of defendant insurance companies, though, does not ipso facto mean that there is a value that can be collected on the policies in practical terms. What must now be determined is whether the value of buildings at the time of the loss was the “actual cash value” as plaintiff would have it or whether there is no value that can be collected since the buildings were being wrecked pursuant to a firm contract to demolish the entire complex with the salvage belonging to the wreckers, as defendants assert. The plaintiff claims that the “actual cash value” of the buildings at the time of the loss was $300,000.00; that the amount due on the mortgage held by it was $249,843.06; that each of the six companies issued a $50,000.00 policy on the buildings and that $41,640.51 is due plaintiff from each company ($41,640.51 x 6 = $249,843.06 — mortgage balance). The premise that “actual cash value” rather than market value or relative value will be determinative of the amount of loss is a valid one in the usual case, given the difficulty that arises in permitting incidental considerations to be injected into evaluation. We do not believe that it ought to be applied in this case. To award $249,843.06 for a fire loss to buildings that were in the process of being wrecked with the knowledge of the plaintiff and pursuant to a firm contract which also gave the wrecker ownership of the salvage would produce an incongruous and inequitable result. Plaintiff cites various cases to the proposition that actual cash value is the only criteria determinative of the amount of loss even where there was an expressed intention of wrecking the insured location. Plaintiff relies heavily on Knuppel v. American Insurance Co., 269 F.2d 163 (7th Cir.1959) in Support of its contention" }, { "docid": "7142000", "title": "", "text": "and for which a premium has been charged and paid.” § 627.702(1), Fla. Stat. (2003). Section 627.702 is triggered only when an insured building is rendered a “total loss” as defined by Florida courts. Thus, in order for the plaintiffs’ claim to fall within the scope of Florida’s Valued Policy Law, the plaintiffs must first establish that there was a “total loss” of an insured building. The principal object of Florida’s Valued Policy Law is to fix the measure of damages in case of a total loss. Springfield Fire and Ins. Co. v. Boswell, 167 So.2d 780 (Fla. 1st DCA 1964). The Supreme Court of Florida long ago adopted the “identity test” to determine whether a building is an actual “total loss.” Lafayette Fire Ins. Co. v. Camnitz, 111 Fla. 556, 560-561, 149 So. 653, 654-655 (Fla.1933). The identity test looks to see whether the building: “has lost its identity and specific character as a building, and becomes so far disintegrated, it cannot be possibly designated as a building, although some part of it may remain standing. It matters not that some debris remains which may be useful or valuable for some purposes.” Id. Thus, the total loss of a building, for purposes of Florida’s Valued Policy Law, means the total loss of the building, but not necessarily the absolute extinction of all its materials, or even that no part of it is left standing. In addition to the identity test, a building may be deemed a total loss, within the scope of the statute, if it is rendered a constructive total loss. A constructive total loss occurs when a building, although still standing, is damaged to the extent that ordinances or regulations in effect at the time of the damage actually prohibit or prevent the building’s repair, such that the building has to be demolished. Netherlands Ins. Co. v. Fowler, 181 So.2d 692, 693 (Fla. 2d DCA 1966). In applying the “identity test” to the facts of this case, the undisputed evidence shows that after Hurricane Ivan, the plaintiffs’ home plainly did not lose its identity and specific character" }, { "docid": "6972322", "title": "", "text": "policy, but not elsewhere. . “Actual cash value” is defined as the reproduction cost less depreciation. See e.g., Mamou Farm Serv. v. Hudson Ins. Co., 488 So.2d 259, 263 (La.Ct.App. 3d Cir.1986). . La.R.S. § 22:695(A) provides: A. Under any fire insurance policy insuring inanimate, immovable property in this state, if the insurer places a valuation upon the covered property and uses such valuation for purposes of determining the premium charge to be made under the policy, in the case of total loss the insurer shall compute and indemnify or compensate any covered loss of, or damage to, such property which occurs during the term of the policy at such valuation without deduction or offset, unless a different method is to be used in the computation of loss, in which latter case, the policy, and any application therefor, shall set forth in type of equal size, the actual method of such loss computation by the insurer. (Emphasis added). . The district court found Caffery's depreciation figures were inconsistent with other appraisal testimony and believed that in this regard Caffery had an interest in reporting to the bank a higher amount of depreciation. . It should be noted that First Acadiana National Bank, the bank Real Asset purchased the Davis building from, acquired the properly through a merger with the Bank of Iberia. . The district court terminated the plaintiff's duty to mitigate when it found that the insurer had an obligation to pay. Even though the insurer may have been in breach at this point, this breach or the availability of coverage in no way excused the insured from a duty to take action to avoid further injury. The duty to mitigate is such a recognized defense in the recovery of damages that some courts have awarded insureds the expenses of mitigating when an insured has taken protective measures. See e.g., Harper v. Pelican Trucking Co., 176 So.2d 767, 772-774 (La.Ct. App. 2d Cir.1965); Slay Warehousing Co. v. Reliance Ins. Co., 471 F.2d 1364, 1367-68 (8th Cir.1973); Winkler v. Great Am. Ins. Co., 447 F.Supp. 135, 142 (E.D.N.Y.1978); Hatley v." }, { "docid": "2574946", "title": "", "text": "mortgaged premises are worth the amount of the mortgage or that the mortgage debt will be paid.” Blackhawk Prod. Credit Assoc. v. Chicago Title Ins. Co., 144 Wis.2d 68, 423 N.W.2d 521, 525 (1988); accord Green v. Evesham Corp., 179 N.J.Super. 105, 109, 430 A.2d 944 (App.Div.1981); 9 John A. Appleman et al., Insurance Law and Practice § 5216 (1981 & 1999 Supp.). “[G]enerally, the actual loss to a mortgagee arising from a title insurance company’s failure to disclose or except, in the mortgagee’s policy, a superior lien on property was the difference between the value of the mortgagee’s security interest had title been as described in the policy and the value of the mortgage subject to the title defect.” See 9 Appleman, § 5216; see also Blackhawk Prod. Credit Assoc., 423 N.W.2d at 525-26 (stating that “the insured must show that the security of the insured lien was in fact impaired by the prior lien[; a]bsent such a showing, the insured has not presented evidence sufficient to establish a claim of actual loss or damage sustained or incurred”) (citing D. Barlow Burke, Law of Title Insurance § 2.2 at 32-33 (1987)); accord Focus Investment Assocs., Inc. v. American Title Ins. Co., 992 F.2d 1231, 1237 n. 10 (1st Cir.1993); First Federal Savings and Loan Assoc. of Fargo, North Dakota v. Transamerica Title Ins. Co., 19 F.3d 528, 530 (10th Cir.1994). In this case, RTC Mortgage Trust has not demonstrated that Fidelity’s second mortgage resulted in any diminution of its security. Admittedly, the HomeFed mortgage was for $13.5 million and the result obtained by Title USA in the title priority litigation gave HomeFed a first lien priority up to $10.9 million. The “insurable interests however,] is the ‘fair market value of the realty ... and is not controlled by the original purchase price.’ ” Allison v. Ticor Title Ins. Co., 907 F.2d 645, 651 (7th Cir.1990) (citing Blackhawk Prod. Credit Assoc., 423 N.W.2d at 526, and quoting Atlanta Title & Trust Co. v. Allied Mortgage Co., 64 Ga.App. 38, 12 S.E.2d 147, 149 (1940)). Thus, in determining whether HomeFed sustained" }, { "docid": "18351376", "title": "", "text": "the loss was “practically a total loss”. The policy of each of the insurers was in the amount of not to exceed $10,000 covering its pro-rated proportion of any loss not exceeding $14,000 on the building, $2500 on restaurant furniture and fixtures, and $3500 on tavern furniture and fixtures. Each of the policies insured the plaintiff “ * * * to the extent of the actual cash value of the property at the time of the loss * * * ”. There was conflicting testimony as to the value of the building. Likewise there was a conflict in the testimony as to whether or not the plaintiff had intended to have the insured building removed after completion of the remodeling of the new restaurant-tavern location. An adjuster for the insurers testified that plaintiff told him that he was going to have the building removed and was negotiating to include the site in the lease of the adjacent property for service station purposes. Plaintiff, however, testified that he was considering various possibilities, but at the time of the fire was undecided. lie had however obtained a proposal from a contractor in which the latter offered to remove the building for $200, the plaintiff to retain and remove certain fixtures, including the bar and the lavatory fixtures, all remaining items and the building to become the property of the contractor. Subsequent to the fire the basement was filled in and the site leveled at a cost of $200 to the plaintiff. Some months later it was included in the lease of the adjacent property for service station purposes. As we view the law of Illinois, which governs this case, the trial court’s conclusions of law correctly stated the proper measure of indemnity applicable under the terms of the policies. In Smith, for Use of Inter-Ocean Casualty Co. v. Allemannia Fire Insurance Co., 219 Ill.App. 506 it was held that “actual cash value” as used in the indemnity-clause of a fire insurance policy “means reproduction value less depreciation for age”. The insurers however rely heavily upon McAnarney v. Newark Fire Ins. Co., 247" }, { "docid": "13748671", "title": "", "text": "an average depreciation rate determined by the court. This average depreciation rate was arrived at by increasing the average depreciation rate on tooling disclosed by the testimony of plaintiff’s witnesses by the difference between the overall rate of depreciation plaintiff applied to machinery and the average rate which would result as to the machinery value arrived at by defendant’s witnesses computed by using plaintiff’s replacement value new figure on machinery. This in effect made an'adjustment in loss on tooling to compensate for under-depreciation the court found to exist in plaintiff’s figures— equating the amount of under-depreciation to that which existed in the plaintiff’s machinery loss figure by comparison with defendant’s used-machinery market value figure. In view of the close relationship shown by the record between the machines and'the tooling used with and complementing them we perceive no error in the court’s disposition of the issue as to tooling loss or damage unless the use of the market value of the machines as a factor in adjusting the depreciation was the use of a prohibited criteria. We proceed therefore to consideration of the basic underlying issue as to whether the court erred in determining loss on the basis of market value rather than by reference to replacement value new less depreciation. Plaintiff relies heavily upon our decision in Knuppel v. American Insurance Company, 7 Cir., 269 F.2d 163, a case involving fire loss on a restaurant-tavern building under an identical policy provision. Illinois law governed in Knuppel and we held that the trial court’s conclusions of law correctly recognized that under a controlling Illinois decision (Smith for Use of Inter-Ocean Casualty Co. v. Allemannia Fire Insurance Co., 219 Ill.App. 506) “actual cash value” as used in the indemnity clause of a fire insurance policy “means reproduction value less depreciation for age”. But the instant case must be decided with reference to the law of Wisconsin. And our comment in Knuppel distinguishing McAnarney v. Newark Fire Ins. Co., 247 N.Y. 176, 159 N.E. 902, 56 A.L.R. 1149, is of no aid to plaintiff here. No case has been cited by the parties" }, { "docid": "201179", "title": "", "text": "for the sale of his stock to the corporation. Because of plaintiff’s Instruction 5 (supra, p. 115), it was essential for defendants to show that Seidel and his wife did not own any stock at the time of the fire, so that it was not reversible error to receive the 1963 chattel mortgage which replaced a 1961 mortgage released by Seidel. Although plaintiff’s brief deplores the receipt of evidence regarding its economic and financial history, much of that evidence was put in by the plaintiff. Certainly the introduction into evidence of plaintiff’s income tax returns and accountant Roy’s testimony were properly admitted to show the poor financial condition of this business prior to the fire, a possible motive for the arson that occurred in October 1961. Stein v. Girard Insurance Co. of Philadelphia, Pa., 259 F.2d 764, 766 (7th Cir. 1958); McIntosh v. Eagle Fire Company of New York, 325 F.2d 99, 100 (8th Cir. 1963). Since the policies in question insured “the actual cash value of the property at the time of loss,” plaintiff argues that it was improper to accept any depreciation testimony. In Knuppel v. American Insurance Co., 269 F.2d 163, 165-166 (7th Cir. 1959), we held that under Illinois law “actual cash value,” as used in indemnity clauses of fire insurance policies, means reproduction value less depreciation for age. Under that holding, to which we adhere, the depreciation evidence was admissible. This accords with Instructions D and E, both of which refer to depreciation; their correctness is not disputed in plaintiff’s briefs. Likewise, the District Court correctly received the testimony of insurance adjuster Justice and Messrs. Sinnett and Kidwell of the Lamp Company, the firm that did the repair, remodeling and replacement work for the lessors and the restaurant, to support the defense that plaintiff had knowingly included in its proofs of loss various losses already reimbursed to the lessors by other insurance companies. Plaintiff complains too that defendants should not have been permitted to show that Phil Anaston had transferred title to his home to his son, Louis Manolis. However, this was first elicited during" }, { "docid": "13834962", "title": "", "text": "to the “actual cash value” rule in demolition cases, increases in viability in proportion to the proximity and certainty of the demolition and decreases in acceptance in proportion to the remoteness and indefiniteness of demolition. In Board of Education of Hancock County v. Hartford Fire Ins. Co., et al., 124 W.Va. 163, 19 S.E.2d 448 the school involved therein was to be replaced when a fire occurred. A contract was made to remove the old school and build a new one, the contractor was notified of the day when the school would be vacated and it was requested that the contractor proceed with the demolition. The Court approved of the general actual cash value rule but found the case to be an exception given the binding contract to demolish. This reasoning applies, a fortiori in our ease where the actual wrecking was in progress. In Bailey v. Gulf Insurance Co., 406 F.2d 47 (10th Cir. 1969), the Court held that existence of a city resolution declaring the building to be a nuisance and ordering the building to be demolished had no bearing on its value for fire insurance purposes. There is however a difference between the effect on cash value of a mere “legal duty” to demolish and the actual demolition being embarked upon as well as a difference between being forced into demolition by a city resolution and the voluntarily embarkation upon demolition. The Court however did state that: Indeed, in an analogous situation in which an owner was also under a legal duty to demolish an insured structure, this court, applying Oklahoma law, determined that at least until physical changes were made in fulfillment of the legal obligation to destroy the building, the insurer could not use the owner’s legal duty as a shield against the payment of damages. [See American Home Fire Assurance Co. of New York v. MidWest Enterprise Co., 189 F.2d 528 (10th Cir. 1951)] 406 F.2d at 48. Thus we see that the closer intention comes to reality the more apt the Court is to consider the valuelessness of the insured building in view" }, { "docid": "201180", "title": "", "text": "argues that it was improper to accept any depreciation testimony. In Knuppel v. American Insurance Co., 269 F.2d 163, 165-166 (7th Cir. 1959), we held that under Illinois law “actual cash value,” as used in indemnity clauses of fire insurance policies, means reproduction value less depreciation for age. Under that holding, to which we adhere, the depreciation evidence was admissible. This accords with Instructions D and E, both of which refer to depreciation; their correctness is not disputed in plaintiff’s briefs. Likewise, the District Court correctly received the testimony of insurance adjuster Justice and Messrs. Sinnett and Kidwell of the Lamp Company, the firm that did the repair, remodeling and replacement work for the lessors and the restaurant, to support the defense that plaintiff had knowingly included in its proofs of loss various losses already reimbursed to the lessors by other insurance companies. Plaintiff complains too that defendants should not have been permitted to show that Phil Anaston had transferred title to his home to his son, Louis Manolis. However, this was first elicited during Phil Anaston’s direct examination by the plaintiff when he testified that the transfer was made because of his poor health. It was therefore permissible for defendants to cross-examine Seidel to show that the title had been transferred for another and less edifying reason. Plaintiff also complains of the admissibility of any reference to a 1958 suit brought by the Seidels in the City Court of Elgin, Illinois, against this restaurant and Mr. and Mrs. Phil Anaston, with their son Louis Manolis later added as a party defendant. In the direct examination of Seidel by plaintiff, a picture was painted of a long history of untroubled business dealings between Seidel, a person of stature in the community, and Phil Anaston, obviously intended to cause the jury to react favorably to Anaston. Under the doctrine of curative admissibility, it was proper to permit defendants to show through reference to the Seidels’ lawsuit that Seidel did not always regard Anaston favorably, Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503; California Insurance Co. v." } ]

[ { "docid": "14222368", "title": "", "text": "count, rather than risk the prejudice (as to either or both counts) that would result from testifying on the other. Obviously no such dilemma exists where the balance of risk and advantage in respect of testifying is substantially the same as to each count. Thus unless the “election” referred to by appellant is to be regarded as conclusive — and we think it should not be — no need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — -to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. Here, counsel for appellant represented to the court that appellant desired to remain silent on Counts 8 and 9 in order to avoid disclosing to the jury his disobedience of the instructions of the Majority Leader of the Senate regarding outside business activities, and because he feared prosecution under conflict of interest laws. He added that in his opinion appellant had a “legal defense” to Counts 8 and 9. No mention, however, was made of the nature and importance of the testimony he wished to give on the other counts. Moreover, our examination of appellant’s testimony at trial leaves us unconvinced that he had “ample reason not to testify on [Counts 8 and 9] * * * and would not have done so if [those counts] * * * had been tried separately.” In Cross we noted that the defendant’s testimony on Count 1 was “plainly evasive and unconvincing,” and on cross-examination he was “open to questioning concerning his generally tawdry way of life and his prior convictions.” No" } ]

[ { "docid": "23634383", "title": "", "text": "842, 92 S.Ct. 138, 30 L.Ed.2d 77; C. McCormick, Handbook on the Law of Evidence § 190 (2d ed. 1972). Park was charged with “knowingly, intentionally and unlawfully” manufacturing a controlled substance, so intent and knowledge were essential elements of the crime charged. Moreover, Park’s defense was basically that he was experimenting with concocting a fuel or additive to be used in his racing cars and if indeed the substance produced was PCP, it was accidental. We agree with the government that the prior crime could have been admitted in a separate trial for the purpose of showing the appellant’s intent and knowledge. Since the prior conviction would have been admissible even if the drug charge had been tried alone, we can see no possible legal prejudice resulting from joinder, cf., Smith v. United States, 5 Cir. 1966, 357 F.2d 486, 489; Drew v. United States, 1964, 118 U.S.App.D.C. 11, 331 F.2d 85, 89-90. The argument by Park that he was prejudiced by not having a meaningful choice of whether to testify is without merit. The record reveals that immediately prior to trial Park had not decided whether to testify or not. The Court in Baker v. United States, supra, 401 F.2d at 977, stated: [N]o need for a severance exists until the defendant makes a convincing showing both that he has important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reason for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. Accord United States v. Williamson, 5 Cir. 1973, 482 F.2d 508, 512. We do not think that Park met his burden of demonstrating that he would have been prejudiced if the" }, { "docid": "7984754", "title": "", "text": "he would offer on the crimes involving intent. In discussing the burden on a defendant who moves for severance, the United States Court of Appeals for the District of Columbia Circuit has stated: [N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reason for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. Baker v. United States, D.C.Cir., 1968, 131 U.S.App.D.C. 7, 26, 401 F.2d 958, 977, cert. denied, 1970, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384, quoted in United States v. Park, 5 Cir., 1976, 531 F.2d 754, 763. Under the teachings of Baker and its progeny, the Trial Court did not abuse its discretion in denying appellant’s motion for severance. Accordingly, we are unable to find that appellant was in any way denied a fair trial. There is yet a further reason why appellant was not denied a fair trial. On cross-examination, appellant gave inculpatory testimony regarding the manslaughter charges. He admitted on cross-examination that he did not have a driver’s license and could not read street signs. However, cross-examination regarding the details of appellant’s driving experience were not relevant to the issues of whether appellant had the owner’s permission to drive the car or whether appellant stole a firearm. These questions were permissible on cross-examination because appellant opened the door to this line of questioning by giving details on direct examination relevant only to the manslaughter claims. Since appellant was not denied a fair trial, the District Court was correct in denying habeas relief. AFFIRMED. . Rule 3.152(a)(2) provides: In case" }, { "docid": "3268900", "title": "", "text": "on others.” 607 F.2d at 685. The court held that, before habeas relief could be granted due to an allegedly erroneous joinder of offenses, petitioner must show that joinder rendered the state trial “fundamentally unfair,” which in turn re quires “as a minimum” that petitioner show prejudice sufficient to warrant relief under Fed.R.Crim.P. 14 or its state equivalent. Id. (emphasis in original). In holding that petitioner had not met this burden, the Fifth Circuit noted that he had given “no indication concerning why he did not want to testify on the manslaughter counts or what testimony he would offer on the [other] crimes ...” 607 F.2d at 686 (emphasis in original). Thus, petitioner had failed to demonstrate even the degree of prejudice necessary for severance in a non-habe-as context: [N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reason for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. Id. (quoting Baker v. United States, 401 F.2d 958, 977 (D.C.Cir.1968)). Here, petitioner has not offered any information “regarding the nature of the testimony he wish[ed] to give on one count and his reason for not wishing to testify on the other”. Id. Therefore, the court cannot evaluate whether denial of his severance motion prejudiced his defense and his claim must be denied. Other grounds support this determination as well. 1) Under federal and New York law, a trial judge has discretion to permit joinder of two or more counts having the same legal character if evidence of the defendant’s commission of any one of the counts" }, { "docid": "12055481", "title": "", "text": "notwithstanding the verdict, which was based on defendant’s position that the government breached a plea agreement with him. The court denied the motion, and defendant was sentenced on February 28,1986. The judgment and commitment order was entered March 3, 1986, and defendant filed his notice of appeal that same day. Defendant first contends that the trial court erred in refusing to sever Count VIII from the remaining counts. Defendant asserts that he was unfairly prejudiced by the court’s refusal to sever because the testimony he wished to give in his defense of Count VIII might tend to incriminate him on the various other counts. We disagree. The decision to grant a severance is left to the sound discretion of the trial court, and we will not reverse such a decision in the absence of a strong showing of prejudice. United States v. Valentine, 706 F.2d 282, 289-90 (10th Cir.1983). “The burden of the defendant to show an abuse of discretion in this context is a difficult one.” Id. at 290. Also, the mere fact that defendant might have a better chance at acquittal if the charges are tried separately is not sufficient to require severance. Id. This court, in Valentine, adopted the guidelines set forth in Baker v. United States, 401 F.2d 958 (D.C.Cir.1968), cert, denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970), to be used in balancing the rights of the defendant against economical judicial administration. “[N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of ‘economy and expedition in judicial administration’ against the defendant’s interest in having a free choice" }, { "docid": "631176", "title": "", "text": "these offenses, defendant was forced either to testify or to remain silent on all counts. Ir Valentine, 706 F.2d at 291, we discussed what a defendant who wishes to remain silent on some counts and testify on others must do before he is entitled to severance under Rule 14: “[N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of ‘economy and expedition in judicial administration’ against the defendant’s interest in having a free choice with respect to testifying.” Id. (quoting Baker v. United States, 401 F.2d 958, 977 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970)). Accord United States v. Hayes, 861 F.2d 1225, 1231 (10th Cir.1988). Defendant failed to make such a showing. From the record before us on appeal, it appears that defendant did not even inform the court of his desire to testify on some counts and remain silent on others. At most, he may have informed the court of his intention to mount an entrapment defense on counts five through eight. See I R. tab 8 at 3 II 5; IV R. 57; Pro Se Brief of Defendant/Appellant at 4. Such a showing is plainly insufficient. See Valentine, 706 F.2d at 290-91 (although defendant informed district court that he wished to testify on some counts and remain silent on others, severance motion properly denied for failure to indicate nature of testimony to be given). Finally, defendant argues that he was prejudiced because the jury, viewing the conclusive evidence presented on counts five through eight, may have “inferred a criminal disposition on the part of [defendant] and" }, { "docid": "12191227", "title": "", "text": "exists where the balance of risk and advantage in respect of testifying is substantially the same as to each count. Thus unless the “election” referred to by appellant is to be regarded as conclusive — and we think it should not be — no need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. 401 F.2d at 976-77 (citations omitted). A defendant making a motion for severance pursuant to Rule 14 has the burden of demonstrating a strong showing of prejudice, United States v. Niederberger, 580 F.2d 63 (3d Cir.1978), cert. denied, 439 U.S. 980, 99 S.Ct. 567, 58 L.Ed.2d 651 (1978) , and it is not enough to simply show that joinder makes for a more difficult defense. United States v. Jordan, 602 F.2d 171 (8th Cir.1979), cert. denied, 444 U.S. 878, 100 S.Ct. 165, 62 L.Ed.2d 107 (1979) . The fact that a separate trial might offer a better chance of acquittal is not a sufficient ground for severance. United States v. Hopkinson, 631 F.2d 665 (10th Cir.1980) cert. denied, 450 U.S. 969, 101 S.Ct. 1489, 67 L.Ed.2d 620 (1981). In the present case the defendants have failed to make the showing necessary for the granting of a severance as to counts or as to parties. Ill Appellants contend that the district court erred in failing to instruct the jury that it must find that the conspiracy agreement was formed in the Northern District of West Virginia and that venue was a question of fact." }, { "docid": "23634384", "title": "", "text": "The record reveals that immediately prior to trial Park had not decided whether to testify or not. The Court in Baker v. United States, supra, 401 F.2d at 977, stated: [N]o need for a severance exists until the defendant makes a convincing showing both that he has important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reason for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. Accord United States v. Williamson, 5 Cir. 1973, 482 F.2d 508, 512. We do not think that Park met his burden of demonstrating that he would have been prejudiced if the gun and drug charges had been joined in the same indictment. The Sufficiency of the Evidence as to the Identity of the Manufactured Substance Appellant argues that the sum total of the government’s evidence of the presence of an illegal substance fails to meet the required burden of proof. We have thoroughly reviewed the complex and copious testimony of the expert witnesses and find that there was more than enough evidence from which the jury could reasonably conclude that the residue of the manufactured substance was phencyclidine. The Demand for a Hearing on the Issue of Electronic Surveillance Appellant filed a pre-trial motion requesting production and disclosure of any and all electronic or other monitoring of his activities. In addition, appellant moved that in the event that the government denied any electronic surveillance in connection with the case, that the Court order a hearing to determine the legal sufficiency of that denial. The government responded with an affidavit sworn to by the Assistant U. S. Attorney which stated: “There was no electronic means used in" }, { "docid": "23297198", "title": "", "text": "Both parties cite Baker v. United States, 401 F.2d 958 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970), on this issue. The guidelines offered in Baker strike an appropriate balance between the competing policies of preservation of the accused’s important rights and economical judicial administration. We therefore restate those guidelines here: [N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. 401 F.2d at 977 (footnotes omitted). Under this standard the defendant’s claim of error in the denial of his severance motion made at the start of trial falters. The trial judge was then given no indication of the nature of the testimony Valentine would give on the firearms charges. The remaining question is whether it was proper to deny the motion when renewed at the conclusion of the prosecution’s case. We also find no abuse of discretion in the trial court’s refusal to grant severance at that late stage of the case. It was then explained by counsel that the testimony that Valentine wished to give on the weapons counts was that the guns were brought to his residence and left there against his will and that he tried to contact the guns’ owner, Ammon, to have them removed. IV R. 205-206. This proffered testimony would have been cumulative; Ammon had testified to the same facts. IV R. 173-79. The additional reason given for defendant’s wishing not to testify on the cocaine counts was also weak. Valentine’s counsel asserted that" }, { "docid": "23297197", "title": "", "text": "the judgment of conviction for commercial burglary. No details of the offense were presented to the jury. The only mention of the prior conviction in closing argument was likewise brief and limited to establishing the fact of the conviction as an element of the weapons offenses. V R. 219. We cannot agree that Valentine has made a persuasive showing of prejudice. Valentine’s second and third requests for severance were based on his desire to testify concerning the firearms counts but not as to the cocaine charges. Valentine concedes that severance is not required in all such instances. Appellant’s Brief at 23. In the motion for severance at the start of trial, defense counsel informed the court that Valentine wished to testify as to the weapons charges, but gave no indication what the testimony might concern. The only reason given for not wanting to testify on the drug counts was that he could thus avoid introduction of the prior conviction on impeachment grounds and it would not have been before the jury on the drug charges. Both parties cite Baker v. United States, 401 F.2d 958 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970), on this issue. The guidelines offered in Baker strike an appropriate balance between the competing policies of preservation of the accused’s important rights and economical judicial administration. We therefore restate those guidelines here: [N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. 401 F.2d at 977 (footnotes" }, { "docid": "23516164", "title": "", "text": "a joint trial but not of separate trials of two or more offenses. . Compare Baker v. United States, supra note 9, 131 U.S.App.D.C. at 26-27, 401 F.2d at 977-978 n. 88. And if this were not so, it was appellant’s duty to so inform the trial court. See note 64, infra, and accompanying text. . Charles Nowlin asked appellant, when he was caught in the apartment, to name the friend, but appellant would not do so. . Compare Blunt v. United States, supra note 9, 131 U.S.App.D.C. at 312, 404 F.2d at 1289, where we were “unwilling to rest a finding of prejudicial error on sheer speculation that appellant may have had a better alibi which he kept to himself.” . “[N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of ‘economy and expedition in judicial administration’ against the defendant’s interest in having a free choice with respect to testifying.” Baker v. United States, supra note 9, 131 U.S.App.D.C. at 26, 401 F.2d at 977 (footnotes omitted). See also Blunt v. United States, supra note 9, 131 U.S.App.D.C. at 312, 404 F.2d at 1289. . “A stronger showing of prejudice is required for reversal under Bule 14 than for reversal under Buie 8, since a misjoinder is always error, whereas a refusal to grant a severance is error only if it is an abuse of discretion.” Blunt v. United States, supra note 9, 131 U.S.App.D.C. at 312, 404 F.2d at 1289 n. 16. . Compare Myrick v. United States, 219 F. 1, 8-12 (1st Cir. 1915), holding that an accused simultaneously tried on two" }, { "docid": "12055482", "title": "", "text": "defendant might have a better chance at acquittal if the charges are tried separately is not sufficient to require severance. Id. This court, in Valentine, adopted the guidelines set forth in Baker v. United States, 401 F.2d 958 (D.C.Cir.1968), cert, denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970), to be used in balancing the rights of the defendant against economical judicial administration. “[N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of ‘economy and expedition in judicial administration’ against the defendant’s interest in having a free choice with respect to testifying.” Valentine, 706 F.2d at 291 (quoting Baker, 401 F.2d at 977). We initially note some concern as to the sufficiency of the defendant’s showing regarding the nature of the desired testimony. Defendant’s affidavit, which accompanied his motion to sever, simply stated his belief that he had a valid defense to Count VIII, the fact that he might testify as to Count VIII, and his belief that the testimony given as to Count VIII would incriminate him as to the other counts. Rec. vol. I, Doc. 17. Likewise, at the hearing on the motion to sever, counsel for defendant simply reiterated that he felt it would be necessary for defendant to testify as to Count VIII, and that his testimony might implicate him on the remaining counts. Rec. vol. XV at 109-113. Defense counsel cryptically noted that defendant’s testimony would have to do with the substantial income and supervisory capacity aspects of the CCE charge. Id. at 113. Defendant thus made no attempt to outline or detail his proposed testimony in conjunction" }, { "docid": "23071385", "title": "", "text": "primary basis for the denial, however, was that \"[t]he gem transactions apparently were going on simultaneously with some of the purported transactions that we’re trying here, and that it is part and parcel of the same transaction or same chain of events.” The judge also considered \"judicial economy, the suitability of conducting separate trials, masses of evidence and masses of witnesses on what may or may not be ... spurious contentions of prejudice.” A Rule 14 motion to sever counts is addressed to the district court’s discretion, United States v. Shue, 766 F.2d 1122, 1135 (7th Cir.1985), and this record does not establish an abuse of that discretion. . The Baker court stated: [N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of \"economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. 401 F.2d at 977 (footnotes omitted) (quoted with approval in United States v. Jardan, 552 F.2d 216, 220 (8th Cir.), cert. denied, 433 U.S. 912, 97 S.Ct. 2982, 53 L.Ed.2d 1097 (1977)). . The instruction given stated: It is the Defendant Anthony J. Peters’ theory of the defense in this case that the wealth which was acquired by the Defendant during the period January, 1979 through April, 1983 was derived from the sale and trade of gemstones which were appraised at inflated values. It is further Defendant’s theory that these gemstones were sold and/or traded to individuals engaged in illegal activities. If you find the evidence in this case raises a reasonable doubt in your mind as to the source of the Defendant’s" }, { "docid": "7984753", "title": "", "text": "this case, appellant failed to articulate to the Trial Court any precise reason why he would be prejudiced by a single trial of all the charges. In his pre-trial motion for severance, appellant did not give any reasons for his claim that the failure of the Trial Court to grant his motion for severance would prejudice him. At the close of the Government’s case, appellant attempted to clarify the basis of his claim of prejudice in a “renewed” motion for severance: MR. BROOKS (appellant’s attorney): Judge, at this time — first, let me renew my motion for severance as to Larceny of a Firearm and Temporary Unauthorized Use of a Motor Vehicle. I’m in a position now where, if only the Manslaughter counts were being tried in this case, I would not put my client on the stand. However, Counts Five and Six involve criminal intent so I’m going to put him on the stand. Clearly, appellant gave no indication concerning why he did not want to testify on the manslaughter counts or what testimony he would offer on the crimes involving intent. In discussing the burden on a defendant who moves for severance, the United States Court of Appeals for the District of Columbia Circuit has stated: [N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reason for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. Baker v. United States, D.C.Cir., 1968, 131 U.S.App.D.C. 7, 26, 401 F.2d 958, 977, cert. denied, 1970, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384, quoted in" }, { "docid": "18642749", "title": "", "text": "decision to grant severance and order separate trials is “within the sound discretion of the trial court and its decision will not ordinarily be reversed in the absence of a strong showing of prejudice.” United States v. Valentine, 706 F.2d 282, 289-290 (10th Cir.1983) (citing United States v. Strand, 617 F.2d 571, 575 (10th Cir.1980), cert. denied, 449 U.S. 841, 101 S.Ct. 120, 66 L.Ed.2d 48 (1980)). The defendant’s burden to show an abuse of discretion is a difficult one. Id. at 290 (citing United States v. Van Scoy, 482 F.2d 347 (10th Cir.1973)). We have laid down guidelines for a trial court to consider when a defendant wishes to testify on one count and remain silent as to another: [N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administation” against the defendant’s interest in having a free choice with respect to testifying. Valentine, 706 F.2d at 291 (quoting Baker v. United States, 401 F.2d 958, 977 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970)). Our resolution of the evidentiary issues in this case substantially undercuts Hayes’ argument that the trial court abused its discretion. Had separate trials been granted, and had Hayes not testified on Count II, the testimony of Vest and the computer data evidence would have been sufficient for a jury to find that Hayes had failed to file a return in 1981. Since the computer data evidence was properly admitted, there was no need for separate trials. While separate trials might have increased Hayes’ chances of acquittal by avoiding the" }, { "docid": "23318833", "title": "", "text": "that not all the evidence introduced against the defendant at trial concerning both offenses would have been admissible at separate trials on each type of offense is refuted by the specific finding of the district court that the evidence pertaining to the manufacturing count would have been admissible in a trial on the distribution counts under Fed.R. Evid. 404(b), a finding with which we agree. United States v. Long, 574 F.2d 761 (3d Cir.), cert. denied, 439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.2d 657 (1978). Defendant’s claim, that he was prejudiced by the joinder of offenses because it led him not to exercise his right to testify at all due to the adverse inferences which might be drawn by a jury from his failure to testify on the manufacturing count while testifying on the distribution counts, relies heavily upon Cross v. United States, 335 F.2d 987 (D.C.Cir.1964). In Cross the court of appeals reversed defendant’s conviction, hold ing that the district court had abused its discretion in failing to sever the offenses under Fed.R.Cr.P. 14. The court found prejudice because the “accused wishe[d] to testify on one but not the other of two joined offenses which [were] clearly distinct in time, plaee and evidence.” Id. at 989. Subsequent decisions of that court make clear that it requires severance only where the “defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other.” Baker v. United States, 401 F.2d 958, 977 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970). In order to make such a showing, “it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine....” Id. at 977. See also Bradley v. United States, 433 F.2d 1113, 1123 (D.C.Cir.1969). In the instant case, not only did defendant fail to detail the evidence he" }, { "docid": "18626059", "title": "", "text": "on the fraud and conspiracy counts. Therefore, he argues, joinder deprived him of his perceived rights to remain silent as to the fraud counts in one trial while exercising his right to present evidence in his own defense on the obstruction counts in a separate trial. At trial, however, Ballis did not point out this dilemma with sufficient specificity for the trial court to have abused its discretion in denying the motion. On the day trial began, Ballis still indicated indecision as to whether he would testify even in a severed trial, and did not indicate what his testimony would be in any event. As we have oft-stated, this is simply not a sufficient showing of prejudice: In making such a showing, it is essential that the defendant present enough information—regarding the nature of the testimony he wishes to give on one count and his reason for not wishing to testify on the other—to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. Park, 531 F.2d at 763 (quoting Baker v. United States, 401 F.2d 958, 977 (D.C.Cir.1968)) (upholding refusal to sever in deference to defendant’s desire to testify only on one count where, immediately before trial, defendant had not decided whether to testify); United States v. Outler, 659 F.2d 1306, 1313 (5th Cir.1981) (affirming refusal to sever where defendant “made no explanation as to why it was important for him to remain silent as to [some] charges, other than express his desire to do so.”), cert. denied, 455 U.S. 950, 102 S.Ct. 1453, 71 L.Ed.2d 665 (1982); Forrest, 623 F.2d at 1115 (“Appellant’s bare allegation that he wanted to testify with respect to one count but not with respect to the other gave the trial judge no factual basis on which to evaluate possible prejudice.”). Moreover, we cannot find that the district court abused its discretion in denying severance of the charges because Ballis has not shown that he" }, { "docid": "631175", "title": "", "text": "argues that he was prejudiced and ultimately convicted on counts one and two (the marijuana offenses) because of lengthy testimony about Peters’ marijuana smuggling activities. Absent an actual showing of prejudice, however, such an allegation does not warrant reversal. See United States v. Hack, 782 F.2d 862, 870 (10th Cir.) (“Neither a mere allegation that defendant would have a better chance of acquittal in a separate trial, nor a complaint of the ‘spillover effect’ from the evidence that was overwhelming or more damaging against the co-defendant than that against the moving party is sufficient to warrant severance.”) (citation omitted), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986). We are not persuaded that defendant was prejudiced by the district court’s refusal to grant defendant and Peters separate trials. Defendant alternatively argues that he was prejudiced because he wished to remain silent on counts one and two (the marijuana offenses), but testify and mount an entrapment defense on counts five through eight (the other drug offenses). When the district court refused to sever these offenses, defendant was forced either to testify or to remain silent on all counts. Ir Valentine, 706 F.2d at 291, we discussed what a defendant who wishes to remain silent on some counts and testify on others must do before he is entitled to severance under Rule 14: “[N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of ‘economy and expedition in judicial administration’ against the defendant’s interest in having a free choice with respect to testifying.” Id. (quoting Baker v. United States, 401 F.2d 958, 977 (D.C.Cir.1968), cert." }, { "docid": "7680552", "title": "", "text": "virtually admitting his guilt of the subsequent offenses. He says he should have been granted a separate trial on the robbery count at which he could have admitted possession of the checks and then given an innocent — or at least different — explanation of how he got them. Presumably he would then not have testified at the trial of the other offenses. In some circumstances “prejudice may develop when an accused wishes to testify on one but not the other of two joined offenses * * Cross v. United States, 118 U.S.App.D.C. 324, 326, 335 F.2d 987, 989 (1964). But the mere fact that the defendant moves to sever the counts does not establish such prejudice. Baker v. United States, supra, 131 U.S.App.D.C. at 25, 401 F.2d at 976. In Baker, we held that no need for a severance exists until the defendant makes a convincing showing both that he has important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information— regarding the nature of the testimony he wishes to give on one count and his reason for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. Id. at 26, 401 F.2d at 977. In the instant case, however, appellant made no claim of testimonial embarrassment in support of his motion for separate trials under Rule 14. He gave no indication that he wished to testify only on one count. Instead, he presented a detailed álibi which, if believed, would have fully exonerated him on all counts. The result is that the record discloses no evidence of actual prejudice. And we are unwilling to rest a finding of prejudicial error on sheer speculation that appellant may have had a better alibi which he kept to himself. Appellant also argues" }, { "docid": "12191226", "title": "", "text": "to another, there has been no showing or proffer of which count they would have elected to assert their fifth amendment privilege against self-incrimination. Without some proffer by the defendant as to the testimony he might wish to present on one count, while not wishing to testify on the other, the district court was left with a guessing game. This predicament has been explained in Baker v. United States, 401 F.2d 958, 976-77 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970): The essence of our ruling in Cross [v. United States, 335 F.2d 987 (D.C.Cir. 1964) ] was that, because of the unfavorable appearance of testifying on one charge while remaining silent on another, and the consequent pressure to testify as to all or none, the defendant may be confronted with a dilemma; whether, by remaining silent, to lose the benefit of vital testimony on one count, rather than risk the prejudice (as to either or both counts) that would result from testifying on the other. Obviously no such dilemma exists where the balance of risk and advantage in respect of testifying is substantially the same as to each count. Thus unless the “election” referred to by appellant is to be regarded as conclusive — and we think it should not be — no need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying. 401 F.2d at 976-77 (citations omitted). A defendant making a motion for severance pursuant to Rule 14 has" }, { "docid": "7984755", "title": "", "text": "United States v. Park, 5 Cir., 1976, 531 F.2d 754, 763. Under the teachings of Baker and its progeny, the Trial Court did not abuse its discretion in denying appellant’s motion for severance. Accordingly, we are unable to find that appellant was in any way denied a fair trial. There is yet a further reason why appellant was not denied a fair trial. On cross-examination, appellant gave inculpatory testimony regarding the manslaughter charges. He admitted on cross-examination that he did not have a driver’s license and could not read street signs. However, cross-examination regarding the details of appellant’s driving experience were not relevant to the issues of whether appellant had the owner’s permission to drive the car or whether appellant stole a firearm. These questions were permissible on cross-examination because appellant opened the door to this line of questioning by giving details on direct examination relevant only to the manslaughter claims. Since appellant was not denied a fair trial, the District Court was correct in denying habeas relief. AFFIRMED. . Rule 3.152(a)(2) provides: In case two or more charges of related offenses are joined in a single indictment or information, the court nevertheless shall grant a severance of charges on motion of the State or of a defendant (i) before trial upon a showing that such severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense, or (ii) during trial, only with defendant’s consent, upon a showing that such severance is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. . Appellant also claims that the Trial Court’s refusal to sever violated his Fifth Amendment right against self-incrimination. However, our finding that appellant was not substantially prejudiced by the failure to grant severance disposes of the Fifth Amendment claim as well. “Where joinder is proper and there has been found no substantial prejudicial effect, the Fifth Amendment is not violated because a defendant must elect to testify as to both charges or to none at all.” Holmes v. Gray, 7 Cir., 1975, 526 F.2d 622, 626. ." } ]

[ { "docid": "7887763", "title": "", "text": "(In re Anderson), 269 B.R. 27, 29 (8th Cir. BAP 2001)(citing Andersen v. Ries (In re Andersen), 259 B.R. 687, 690 (8th Cir. BAP 2001); Abernathy v. La-Barge (In re Abernathy), 259 B.R. 330, 332 (8th Cir. BAP 2001)). “Whether property is included in the bankruptcy estate is a question of law.” Drewes v. Vote (In re Vote), 276 F.3d 1024, 1026 (8th Cir.2002)(quoting Ramsay v. Dowden (In re Central Arkansas Broadcasting Co.), 68 F.3d 213, 214 (8th Cir.1995)). Discussion Property of the bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). “The scope of this section is very broad and includes property of all descriptions, tangible and intangible, as well as causes of action.” Whetzal v. Alderson, 32 F.3d 1302, 1303 (8th Cir.1994) (citation omitted). However, pursuant to section 541(c)(2) of the Bankruptcy Code, property that is subject to restrictions on transfer by “applicable nonbankruptcy law” is excluded from property of the bankruptcy estate. 11 U.S.C. § 541(c)(2). See also Whetzal, 32 F.3d at 1303. In Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992), the United States Supreme Court held that a debtor’s interest in an ERISA-qualified retirement plan could be excluded from the bankruptcy estate pursuant to section 541(c)(2). In Whetzal, the Eighth Circuit observed that the Supreme Court had “relied on ERISA’s requirement that approved plans include a provision ‘that benefits provided under the plan may not be assigned or alienated.’ ” Whetzal, 32 F.3d at 1303 (applying holding in Patterson v. Shumate to rule that a Chapter 7 debtor former federal employee’s interest in a civil service retirement plan was not property of the bankruptcy estate). Ronald asks us to extend the holding in Patterson v. Shumate to the interest in an ERISA-qualified retirement plan that a debtor has acquired through a qualified domestic relations order pursuant to a marital dissolution proceeding. The section of ERISA at issue here provides in pertinent part: (d) Assignment or alienation of plan benefits (1)Each pension plan shall provide that" } ]

[ { "docid": "15987884", "title": "", "text": "pension plan by employer with embezzlement claim); Patterson v. Shumate, 504 U.S. 753,112 S.Ct. 2242, 119 L.Ed.2d 519 (1992) (ERISA alienation restriction is enforceable under Bankruptcy Code § 541(c)(2) to prevent debtor’s interest in pension fund from becoming property of the estate); SEC v. Johnston, 922 F.Supp. 1220 (E.D.Mich.1996) (ERISA plan funds exempt from disgorgement for securities fraud penalty). DISCUSSION In the months preceding the bankruptcy petition, debtor made voluntary 401(K) and Savings Contributions to the ERISA Plan. In addition, debtor made several Loan Repayments on an outstanding loan from his ERISA Plan account. There is no allegation or evidence that the debtor’s regular ERISA Plan contributions exceeded either ERISA or the Plan’s restrictions. The Chapter 7 Trustee asserts that certain prebankruptcy 401(K) Contributions, Savings Contributions, and Loan Repayments by debtor to the ERISA Plan are avoidable as preferences or fraudulent conveyances. Counts 1 and 2 — Property of the Estate and Exemption Counts 1 and 2 assert that the funds in the ERISA Plan are not reasonably necessary for the support of the debtors and are therefore not exempt under Neb.Rev.Stat. § 25-1563 (Reissue 1989). Additionally, the Trustee asserts that, pursuant to Nebraska’s exemption statute, all contributions made by debtor to the ERISA Plan within two years of the bankruptcy filing are not exempt and should be turned over to the Trustee. This argument confuses the legal issues. Under 11 U.S.C. § 541(a), an estate is created upon the commencement of a bankruptcy case, which is comprised of all legal or equitable interests of the debtor. Property of the estate includes exempt property. However, “a restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title.” 11 U.S.C. § 541(c)(2); Patterson v. Shumate, 504 U.S. 753, 759, 112 S.Ct. 2242, 2247, 119 L.Ed.2d 519 (1992). In Patterson, the Supreme Court held that the ERISA restriction on alienation constitutes an enforceable restriction under “applicable nonbankruptcy law” for purposes of 11 U.S.C. § 541(c)(2), so that a debtor’s beneficial interest in an ERISA" }, { "docid": "21679558", "title": "", "text": "trust under state law. The United States Supreme Court affirmed the Fourth Circuit holding that the ERISA-qualified plan is not a part of the bankruptcy estate. Of importance to this analysis is that the facts in Patterson v. Shumate are so similar to the facts in the matter presently before the Court. Shumate had the power to terminate the plan at any time, as does Kunz. Shumate had the power to demand distribution of the plan’s funds at any time, as does Kunz. Both Shumate and Kunz stood in positions wherein their plans may be characterized as self-settled trusts. The Trustee has shown nothing to distinguish the present case from Patterson v. Shumate. The Trustee cites to Traina v. Sewell, 180 F.3d 707 (5th Cir.1999), and In re Baker, 114 F.3d 636 (7th Cir.1997), for the proposition if a debtor has the power to immediately withdraw funds from an ERISA-qualified plan, those funds may be recovered for the benefit of the estate. However, the language relied upon by the Trustee in both of his cited opinions is nothing more than dicta. When faced with arguments centering on a debtor’s power to immediately withdraw funds from a plan, the four circuit courts that have considered the issue have all held that the analysis ends with the determination that § 541(c)(2) requirements have been met by the plan. See In re Rueter, 11 F.3d 850 (9th Cir.1993) (al- though debtor held the power to withdraw contributions at any time, the court need look no further than whether the ERISA-qualified plan has an anti-alienation provision that satisfies the literal terms of § 541(c)(2). There is no need to reach the issue of whether the plan also qualifies under state law as spendthrift trust); In re Conner, 73 F.3d 258 (9th Cir.1996) (under Patterson v. Shumate, ERISA plans are exempted from the bankruptcy estate, even though ERISA only requires restraints on alienation to third parties. Any analysis focusing on the debtor’s control of the assets is rejected); Whetzal v. Alderson, 32 F.3d 1302 (8th Cir.1994) (debtor’s right to receive a lump-sum retirement benefit from" }, { "docid": "6506672", "title": "", "text": "ORDER ON TRUSTEE’S OBJECTION TO DEBTORS’ EXEMPTIONS ALEXANDER L. PASKAY, Chief Judge. In each of the above-captioned Chapter 7 cases, the matter under consideration is an objection by the Trustee to each of the Debtors’ claims that funds held in a Martin-Marietta 401K retirement fund are exempt from administration of the bankruptcy estate pursuant to Fla.Stat. 222.21. The following undisputed facts which are relevant to the matters under consideration are as follows: Donald L. Bryant and Mary Alice Bryant filed their voluntary Petition for Relief under Chapter 7 of the Bankruptcy Code on March 21,1989, and claimed funds held in a Martin-Marietta 401K plan with a value of $45,876.00 as exempt. Vincent Martin Partsch and Dorothy Annette Partsch filed their voluntary Petition for Relief under Chapter 7 of the Bankruptcy Code on March 14, 1989, and claimed as exempt funds held in the Plan valued at $1,000. It is the Trustee’s! contention in both cases that the funds currently held on behalf of the Debtors in the employees’ 401K plan are properties of the estate and subject to the administration, notwithstanding the amendment by the legislature of this State that the exemption statute Fla.Stat. 222.21 which now purports to exempt from claim of creditors funds in ERISA type accounts. In opposition, both Debtors contend first that the funds or the stock held in the plan on their behalf are not property of the estate to begin with because they, in fact, qualify as spendthrift trusts, but in any event, they are exempt by virtue of Fla.Stat. 222.21. The Martin-Marietta 401K Retirement Plan provides its employees with an opportunity to contribute funds through payroll deductions in order to set aside and save money. The company makes matching contributions which vary according to the amount that the employee contributes to the Plan. The primary objective of the Plan is to help the employee accumulate savings over a long period. The employee is eligible to receive the benefits from the Plan either upon retirement, death or upon the reaching of age seventy. However, if the employment terminates, the employee is only entitled to" }, { "docid": "16210671", "title": "", "text": "the TIAA annuity is tantamount to a trust, the Court concludes that it is excluded from Quinn’s estate under § 541(c)(2). Conclusion For the foregoing reasons, the Court will reverse the bankruptcy court’s September 30, 2003, order holding that the TIAA annuity is included in Quinn’s bankruptcy estate. An Order consistent with this Opinion will be entered. . A TIAA-CREF retirement plan consists of two separate annuity contracts, one issued by TIAA and the other issued by the College Retirement Equities Fund. See In re Barnes, 264 B.R. 415, 418 (Bankr.E.D.Mich.2001). Only the TIAA portion of the Plan is at issue in this appeal. . Unless otherwise noted, all statutory references are to the Bankruptcy Code, which is set forth in 11 U.S.C. §§ 101-1330. .Quinn initially only asserted that the TIAA annuity was exempt under § 522(d)(10)(E) but later, after the Trustee filed the initial objection, argued that the TIAA annuity and other retirement assets were not part of the estate pursuant to § 541(c)(2). . The bankruptcy court also held that Quinn's interest in the Ford Motor Savings and Stock Investment Plan for Salaried Employees was excluded from the estate pursuant to § 541(c)(2). However, that aspect of the bankruptcy court's ruling is not at issue in this appeal. . Even if the Court were to consider the issue of intervention, it would not address the Trustee’s argument that the bankruptcy court abused its discretion because the Trustee did not appeal the bankruptcy court’s ruling on permissive intervention. See Nat’l Mass Media Telecomm. Sys., Inc. v. Stanley (In re Nat'l Mass Media Telecomm. Sys., Inc.), 152 F.3d 1178, 1181 n. 4 (9th Cir.1998); United States v. Slater, No. 02-4200, 2002 WL 31126713, at *1 (4th Cir. Sept. 26, 2002) (per curiam). . Following Patterson, courts have debated the meaning of the term \"ERISA-qualified plan” coined by the Supreme Court in Patterson because ERISA does not speak in terms of \"qualification.” See, e.g., Kaler v. Craig (In re Craig), 204 B.R. 756, 758-59 (D.N.D.1997). Rather, a \"qualified plan” generally refers to a plan that is tax \"qualified” under the" }, { "docid": "21679559", "title": "", "text": "opinions is nothing more than dicta. When faced with arguments centering on a debtor’s power to immediately withdraw funds from a plan, the four circuit courts that have considered the issue have all held that the analysis ends with the determination that § 541(c)(2) requirements have been met by the plan. See In re Rueter, 11 F.3d 850 (9th Cir.1993) (al- though debtor held the power to withdraw contributions at any time, the court need look no further than whether the ERISA-qualified plan has an anti-alienation provision that satisfies the literal terms of § 541(c)(2). There is no need to reach the issue of whether the plan also qualifies under state law as spendthrift trust); In re Conner, 73 F.3d 258 (9th Cir.1996) (under Patterson v. Shumate, ERISA plans are exempted from the bankruptcy estate, even though ERISA only requires restraints on alienation to third parties. Any analysis focusing on the debtor’s control of the assets is rejected); Whetzal v. Alderson, 32 F.3d 1302 (8th Cir.1994) (debtor’s right to receive a lump-sum retirement benefit from a civil service retirement plan did not make retirement benefits estate property); Meehan v. Wallace, 102 F.3d 1209 (11th Cir.1997) (fact that debtor could access IRA funds by simply paying ten percent tax penalty was not sufficient basis to include IRA plan in property of the estate where the IRA plan was subject to a § 541(c)(2) restriction); In re Yuhas, 104 F.3d 612 (3rd Cir.1997) (although trustee stands in the shoes of the debtor who has the power to liquidate the IRA, because the IRA is subject to state law protections against creditors, it is not property of the estate and cannot be reached by the trustee). Based upon the above, the Court finds that because the ERISA-qualified Plan meets the requirements of 11 U.S.C. § 541(c)(2), it is not property of the estate and cannot be reached by the Trustee despite Kunz’s power to withdraw funds from the account at any time. Therefore, it is hereby ORDERED that Defendants’ Motion to Dismiss Adversary Proceeding No. 08P-2292 with prejudice is granted. BY THE COURT:" }, { "docid": "12534160", "title": "", "text": "subject to a restriction on transfer enforceable under ‘applicable nonbankruptcy law.’” Patterson v. Shumate, 504 U.S. 753, 755, 112 S.Ct. 2242, 2244, 119 L.Ed.2d 519 (1992) (quoting 11 U.S.C. § 541(c)(2)); accord In re Baker, 114 F.3d 636, 638 (7th Cir.1997); Whetzal v. L.D. Alderson, 32 F.3d 1302, 1303 (8th Cir.1994); In re Yonikus, 996 F.2d 866, 870 (7th Cir. 1993). In its unanimous opinion in Patterson, the Supreme Court held that ERISA-qualified plans constitute just such property, by holding that “[t]he anti-alienation provision required for ERISA qualification ... constitutes an enforceable transfer restriction for purposes of § 541(e)(2)’s exclusion of property from the bankruptcy estate.” Id. at 760, 112 S.Ct. at 2248; accord Wear v. Green (In re Green), 967 F.2d 1216,1217 (8th Cir.1992) (quoting same). Thus, under Patterson, a debtor’s interest in such plans is “entirely excluded from a bankruptcy estate.” Orr v. Yuhas (In re Yuhas), 104 F.3d 612, 614 (3d Cir.), cert. denied, — U.S.-, 117 S.Ct. 2481, 138 L.Ed.2d 990 (1997); see Johnston v. Mayer (In re Johnston), 218 B.R. 813, 815, 817 (Bankr.E.D.Va.1998); In re Cathcart, 203 B.R. 599, 601 n. 1 (Bankr. E.D.Va.1996); Butler v. Becton, Dickinson & Co. (In re Loomer), 198 B.R. 755, 759 (Bankr.D.Neb.1996); In re Holst, 192 B.R. 194, 198 (Bankr.N.D.Iowa), aff'd sub nom. Manufacturers Bank & Trust Co. v. Holst, 197 B.R. 856,(N.D.Iowa 1996); In re Stevens, 177 B.R. 619, 620 (Bankr.E.D.Ark.1995); United States v. Clark (In re Kazi), 165 B.R. 246, 247, 248 (Bankr.S.D.Ill.1994); In re Dunham, 147 B.R. 13, 14 (Bankr.E.D.N.C. 1992); cf. Barkley v. Conner (In re Conner), 73 F.3d 258, 259 (9th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 68, 136 L.Ed.2d 29 (1996) (“under [Patterson ], ERISA plans are exempted from the bank- ' ruptey estate”) (emphasis added — see footnote one). In the instant matter, it is uncontroverted that the Plans are ERISA-qualified plans. As such, they are excluded from property of the estate under Section 541(c)(2). Therefore, here, as in In re Yonikus, the debtor “has put the cart before the horse” in claiming his exemption, for, before an exemption" }, { "docid": "8030982", "title": "", "text": "to a pension or profit sharing plan to warrant its exemption under section 703.140(b)(10)(E). There is no indication in this case that the debtors have misused their IRA as short-term savings account or as a device to conceal money from their creditors. The trustee’s objection will be overruled. . The trustee’s original objection did not differentiate between the debtors' three pension accounts. This was, no doubt, due to the fact that the debtors' schedules did not initially disclose three accounts. After the debtors' amended Schedules B and C to disclose the three accounts and to claim them exempt, the trustee filed a reply memorandum. His reply argued that the IRA was not exempt. If the trustee is objecting to the other two retirement accounts, the matter should be set for further argument. . Of course, it is hardly a surprise that there are no decisions from California courts. Section 703.140(b)(10)(E) is applicable only in bankruptcy cases. Consequently, federal courts within California will be the courts most likely to interpret this statute. . And, as Daniel and Bloom both illustrate, pension plans and profit sharing plans are just as susceptible to misuse as IRAs. The fact that they might be used for an improper purpose is not enough to nullify their exemption. There must be evidence that they are actually being misused. The rule should be no different for IRAs. Also, Daniel which dealt with an ERISA qualified pension plan, was decided prior to Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992). In Barkley v. Conner (In re Conner), 73 F.3d 258 (9th Cir.1996), the Ninth Circuit acknowledged that in Shumate, \"the Supreme Court appears to have discounted any distinctions based on the debtors’ control of their assets.” Id. at 260." }, { "docid": "10327070", "title": "", "text": "MEMORANDUM OF DECISION JAMES A. PUS ATERI, Bankruptcy Judge. In this voluntary chapter 7 proceeding, the trustee has filed a complaint seeking a court order requiring the defendants to turn over the debtors’ interest in an Employee Retirement Investment Savings Account (ERISA) fund under 11 U.S.C. §§ 541, 542. The defendants, CIBA-GEI-GY Corporation, the employer of the debtor and Irving Trust Company, trustee of the ERISA fund, oppose turnover because they assert the funds are not property of the estate and because turnover would subject the Plan to loss of tax qualification status under 26 U.S.C. § 401(a). The issues for determination are: 1. What is the effect of a “termination upon bankruptcy” clause in the Investment Savings Plan for Salaried Employees of CIBA-GEIGY Corporation. 2. Does the debtors’ interest in an ERI-SA fund become property of the estate pursuant to § 541 of title 11 upon commencement of a case and creation of an estate pursuant to § 301 of title 11. The parties have briefed the issues and the matter is ready for resolution. FINDINGS OF FACT The debtors filed their voluntary chapter 7 petition on March 11, 1981. The debtor, Thomas Buntin Threewitt, has been a participant since April, 1974 in the Investment Savings Plan (Plan) for Salaried Employees of CIBA-GEIGY Corporation and certain affiliated corporations. The Plan satisfies the requirements of the Employee Retirement Income Security Act of 1974 (ERISA), and is a qualified plan for tax purposes under section 401(a) of the Internal Revenue Code. Under the Plan, employees of CIBA-GEIGY may make Basic Contributions of up to 5% of their compensation. These after tax contributions are matched by CIBA-GEIGY in a percentage ratio related to the employee’s length of service. The Plan permits employees to make additional, unmatched contributions, but the debtor has not done so. As of December 31, 1980 the debtor’s nonforfeitable vested account balance in the Plan was $22,249.48; $13,686.73 represented Basic Contributions and their earnings and $8,562.75 represented company contributions and their earnings. This is the last available accounting prior to the date the debtor filed his petition in bankruptcy." }, { "docid": "12402375", "title": "", "text": "F.3d 258 (9th Cir.1996), the Ninth Circuit Court of Appeals relied on Shumate to dispense with the analysis of the debtor’s control of assets asserted by the appellant here: [U]nder Shumate, ERISA plans are exempted from the bankruptcy estate, even though ERISA only requires restraints on alienation to third parties. In interpreting the § 541(c)(2) exemption to cover ERISA plans, the Supreme Court appears to have discounted any distinctions based on the debtors’ control of their assets. Thus, the appellant’s argument that we should conduct a functional analysis focusing on the debtors’ control of the assets in the ERISA Plan has been rejected by the Supreme Court. In re Conner, 73 F.3d at 260. In so holding, the Ninth Circuit Court of Appeals reaffirmed its prior decision in In re Rueter, 11 F.3d 850 (9th Cir.1993), which had held that a debtor’s interest in an ERISA qualified plan was excluded from the property of the estate, even though the plan allowed employees to withdraw their own contributions at any time and to withdraw employer contributions after two years. Id. (citing In re Rueter, 11 F.3d at 851, in turn relying on Shumate). Also applying Shumate, the Sixth Circuit Court of Appeals concluded that funds already in [the debtor’s] ERISA-qualified account, including the money she repaid prior to filing for bankruptcy, are not part of the bankruptcy estate. However, the money debtors wish to repay to the ERISA account in the future is not similarly excluded. In re Harshbarger, 66 F.3d 775, 777 (6th Cir.1995). Decisions of the bankruptcy courts themselves are in accord with these conclusions of the courts of appeals to consider the question. In In re Baker, 195 B.R. 386 (Bankr.N.D.Ill.1996), the bankruptcy court stated, After Patterson, it is no longer necessary to determine whether an ERISA-qualified plan is a spendthrift trust and thus excluded or exempt from the estate under state law. See Shumate v. Patterson, 943 F.2d 362, 364 (4th Cir.1991), aff'd, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992). Nor is it necessary to determine whether an ERISA-qualified plan is a self settled" }, { "docid": "12402376", "title": "", "text": "after two years. Id. (citing In re Rueter, 11 F.3d at 851, in turn relying on Shumate). Also applying Shumate, the Sixth Circuit Court of Appeals concluded that funds already in [the debtor’s] ERISA-qualified account, including the money she repaid prior to filing for bankruptcy, are not part of the bankruptcy estate. However, the money debtors wish to repay to the ERISA account in the future is not similarly excluded. In re Harshbarger, 66 F.3d 775, 777 (6th Cir.1995). Decisions of the bankruptcy courts themselves are in accord with these conclusions of the courts of appeals to consider the question. In In re Baker, 195 B.R. 386 (Bankr.N.D.Ill.1996), the bankruptcy court stated, After Patterson, it is no longer necessary to determine whether an ERISA-qualified plan is a spendthrift trust and thus excluded or exempt from the estate under state law. See Shumate v. Patterson, 943 F.2d 362, 364 (4th Cir.1991), aff'd, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992). Nor is it necessary to determine whether an ERISA-qualified plan is a self settled trust and thus not excluded or exempt pursuant to state law. See Barkley v. Conner (In re Conner), 73 F.3d 258, 260 (9th Cir.1996).... Once the plan is determined to be ERISA-qualified, the inquiry is finished. Shumate, 943 F.2d at 364.... Thus, the only inquiry is whether the Plan, and the Trust created within that Plan, were ERISA-qualified. In re Baker, 195 B.R. at 390-91 (some internal citations omitted). The bankruptcy court recognized that such a result might seem “counterintuitive,” because “funds to which a debtor may have some limited access are now excluded from the estate,” even though this would not have been so under trust and bankruptcy law principles. Id. at 391. The bankruptcy court found a reason for this result, however, similar to that identified by the Eight Circuit Court of Appeals in Whet-zal: [T]he fact that these funds are excluded from the estate reflects a reconciliation between the congressional intent to protect retirement funds, the congressional desire for consistency in the treatment of assets both within and outside the bankruptcy context," }, { "docid": "15987883", "title": "", "text": "Plan benefitted the debtor, and perhaps his co-debtor spouse. The ERISA restraint on alienation does not bar the Trustee’s recovery from a debtor who benefitted from transfers into an ERISA Plan. ERISA restraints protect only the ERISA Plan and an employee’s interest in the plan. ERISA Anti-alienation and Preemption The ERISA statute preempts state laws which affect employee benefit plans. 29 U.S.C. § 1144(a); Kuhl v. Lincoln Nat’l Health Plan of Kansas City, Inc., 999 F.2d 298, 302 (8th Cir.1993), cert. denied, 510 U.S. 1045, 114 S.Ct. 694, 126 L.Ed.2d 661 (1994). However, ERISA does not preempt other federal law. ERISA’s anti-alienation provision states: Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated. 29 U.S.C. § 1056(d)(1). ERISA plan restrictions on alienation are broadly construed to protect employee interests in pension plans. See Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493 U.S. 365, 110 S.Ct. 680, 107 L.Ed.2d 782 (1990) (prohibiting courts from carving out equitable exceptions to ERISA restrictions on alienation, and preventing recovery against pension plan by employer with embezzlement claim); Patterson v. Shumate, 504 U.S. 753,112 S.Ct. 2242, 119 L.Ed.2d 519 (1992) (ERISA alienation restriction is enforceable under Bankruptcy Code § 541(c)(2) to prevent debtor’s interest in pension fund from becoming property of the estate); SEC v. Johnston, 922 F.Supp. 1220 (E.D.Mich.1996) (ERISA plan funds exempt from disgorgement for securities fraud penalty). DISCUSSION In the months preceding the bankruptcy petition, debtor made voluntary 401(K) and Savings Contributions to the ERISA Plan. In addition, debtor made several Loan Repayments on an outstanding loan from his ERISA Plan account. There is no allegation or evidence that the debtor’s regular ERISA Plan contributions exceeded either ERISA or the Plan’s restrictions. The Chapter 7 Trustee asserts that certain prebankruptcy 401(K) Contributions, Savings Contributions, and Loan Repayments by debtor to the ERISA Plan are avoidable as preferences or fraudulent conveyances. Counts 1 and 2 — Property of the Estate and Exemption Counts 1 and 2 assert that the funds in the ERISA Plan are not reasonably necessary for the support of the debtors" }, { "docid": "12905438", "title": "", "text": "of some additional factor — cannot destroy exemptibility. Id. See also In re Conner, 73 F.3d 258, 260 (9th Cir.) (finding that for purposes of determining whether an ERISA-qualified plan account may be exempt under 541(c)(2) “[t]he Supreme Court appears to have discounted any distinction based on the debtors’ control of their assets”) (citing Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992)), cert. denied, _ U.S. _, 117 S.Ct. 68, 136 L.Ed.2d 29 (1996). In re Rawlinson, 209 B.R. at 507. Also see In re Dubroff, 119 F.3d 75 (2d Cir.1997). These circuit court opinions highlight Congress’ concern for the preservation of retirement plans. In fact, the Ninth Circuit addressed the same situation currently before this Court. There are situations in which an IRA may hold significant assets. For instance, an employee may “roll-over” a company 401(k) plan account to an IRA at the end of employment. The Ninth Circuit has found that a 401(k) plan is not property of the estate. In re Kincaid, 917 F.2d 1162 (9th Cir.1990). Thus, if the trustee’s contention were to prevail, a debtor who loses her job and moves her retirement funds out of her employer’s 401(k) plan into an IRA would likely lose all of her retirement funds if she filed for bankruptcy. In re Rawlinson, 209 B.R. at 505. There is other criticism of the Third Circuit’s Clark decision and its requirement that there be a current right to payments. The Bankruptcy Court for the District of Maine from within the First Circuit has declined to follow Clark. Under this view, exempting a right to future payments goes too far, providing protection out of a “concern for the debtor’s long term security which is absent from the statute.” In re Clark, 711 F.2d at 23. See also, e.g., Bohm v. Brewer (In re Brewer), 154 B.R. 209, 213 (Bankr.W.D.Pa. 1993); In re Chick, 135 B.R. 201, 203 (Bankr.D.Conn.1991); In re Heisey, 88 B.R. at 51. Cf. In re Veils, 949 F.2d at 83 (affirming denial of exemption to 63-year-old debtor because payments were not reasonably necessary" }, { "docid": "12402377", "title": "", "text": "trust and thus not excluded or exempt pursuant to state law. See Barkley v. Conner (In re Conner), 73 F.3d 258, 260 (9th Cir.1996).... Once the plan is determined to be ERISA-qualified, the inquiry is finished. Shumate, 943 F.2d at 364.... Thus, the only inquiry is whether the Plan, and the Trust created within that Plan, were ERISA-qualified. In re Baker, 195 B.R. at 390-91 (some internal citations omitted). The bankruptcy court recognized that such a result might seem “counterintuitive,” because “funds to which a debtor may have some limited access are now excluded from the estate,” even though this would not have been so under trust and bankruptcy law principles. Id. at 391. The bankruptcy court found a reason for this result, however, similar to that identified by the Eight Circuit Court of Appeals in Whet-zal: [T]he fact that these funds are excluded from the estate reflects a reconciliation between the congressional intent to protect retirement funds, the congressional desire for consistency in the treatment of assets both within and outside the bankruptcy context, and the broad concept of property of the estate. In re Baker, 195 B.R. at 391 (citations omitted); accord Whetzal, 32 F.3d at 1304. The bankruptcy court therefore concluded that, “although it is counterintuitive for a bankruptcy court to allow the exclusion of assets to which a debtor has access, albeit restricted, it is required under Patterson if the plan in question is ERISA-qualified.” Id. Manufacturers’ reliance upon the decision of the bankruptcy court in In re Caslavka, 179 B.R. 141 (Bankr.N.D.Iowa 1995), as stating a contrary rule, is misplaced. In re Caslavka stands only for the now unremarkable legal proposition that assets lose their ERISA protection when distributed from an ERISA plan into a plan without the necessary anti-alienation provisions. See In re Caslavka, 179 B.R. at 142; see also In re Houck, 181 B.R. 187, 190 (Bankr.E.D.Pa.1995) (citing for this proposition Veils v. Kardanis, 949 F.2d 78 (3d Cir.1991), and Trucking Employees of North Jersey Welfare Fund, Inc. v. Colville, 16 F.3d 52 (3d Cir.1994)). The decision in In re Caslavka, unlike the" }, { "docid": "16061612", "title": "", "text": "SCHROEDER, Circuit Judge: Appellant is a Chapter 7 trustee of the estate of the debtors, Wilker and Janice Conner. The contested property is Janice Conner’s interest in her pension and profit sharing plan, which is maintained by her employer, The Orthopedic Clinic. The trustee now appeals from a decision of the Bankruptcy Appellate Panel affirming a bankruptcy court order that refused to turn over the debtor’s interest in the plan to the bankruptcy estate. The issue is whether the debtor’s interest in the plan is exempted from the bankruptcy estate under 11 U.S.C. § 541(c)(2). That section provides that interest in a trust that is subject to transfer restrictions under “applicable non-bankruptcy law” is not part of the bankruptcy estate. 11 U.S.C. § 541(c)(2). The BAP held that under the controlling law of this circuit, the after tax contributions of the Conners to the plan should be excluded from the estate because the plan itself was an ERISA qualified plan that had an anti-alienation provision. See In re: Rueter, 11 F.3d 850 (9th Cir.1993), applying Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992). The BAP decision is published at 165 B.R. 901 (9th Cir. BAP 1994). Judge Jones filed a concurring opinion in the BAP decision, questioning the soundness of our holding in In re: Rueter that under Shumate, an ERISA plan’s anti-alienation provision was sufficient to exclude the plan from the bankruptcy estate. Jones’ concurrence pointed out that although the Conners’ plan had an anti-alienation provision, the particular assets at issue here were after tax payments to which the debtors had complete access, and which Janice Conner could withdraw at any time. In this appeal, the trustee emphasizes debtor access and control. He argues that because Congress intended traditional trust law principles to apply, we should hold that funds cannot be placed in trust, beyond the reach of creditors, while remaining within the control of the debtor. The trustee essentially asks us to overrule our decision in In re: Rueter, which is something only an en bane court can do. In Rueter, we held" }, { "docid": "15478421", "title": "", "text": "this case are not in dispute. On December 22, 1986, Elizabeth Hayes Lucas (“debtor”) filed a petition for bankruptcy under Chapter 7 of the Bankruptcy Code. Jane B. Forbes, appellee, was appointed trustee (“trustee”). On the schedule of exempted property, debtor listed a $2,000 exemption in a retirement fund. Inquiries by the trustee revealed that debt- or’s retirement account was with her employer Holiday Inn Corporation (“Holiday”) and that the account was fully vested. As a benefit to employees, Holiday offers participation in a savings and retirement plan (“the Plan”). Debtor claims that the Plan is qualified as a defined contribution plan under'Sections 401(a) and (k) of the Internal Revenue Code. It is further alleged that the Plan is subject to the provisions of Titles I, III and IV of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461, and contains the anti-alienation clause required by ERISA at 29 U.S.C. § 1056(d)(1). On April 20, 1987, Holiday provided the trustee with a copy of debtor’s account statement, advising that $5,868.08 was vested as of January 1, 1987. During the period between April and August of 1987, debtor requested and received from Holiday withdrawals of $1,500.00 on April 15, 1987, $1,161.13 on May 7, 1987, and $4,829.98 on August 24, 1987. On or about April 15,' 1987, the trustee filed a complaint for turnover of assets against the debtor and Holiday, seeking the portion of vested benefits disbursed to debtor after the petition was filed. On cross-motions for summary judgment, the bankruptcy court stated that the debtor’s pension benefits were not excluded from the bankruptcy estate and that the trustee could recover post-petition distributions from the debtor on the pension fund. Lucas, 100 B.R. at 971-72. The bankruptcy court initially stated that it was conceded that debtor’s benefits plan was not a spendthrift trust under Tennessee law and was therefore property of the bankruptcy estate at filing on December 22, 1986. In reaching this conclusion the bankruptcy court cited In re Ridenour, 45 B.R. 72, 78 (Bankr.E.D.Tenn.1984) and In re Faulkner, 79 B.R. 362 (Bankr.E.D.Tenn.1987), both of" }, { "docid": "8734297", "title": "", "text": "property. 11 U.S.C. § 541(a)(1). However, property which falls under § 541(c)(2) is excluded from the estate. That section provides, “A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable non-bankruptcy law, is enforceable in a case under this title.” 11 U.S.C. § 541(c)(2) This “provision entitles a debtor to exclude from property of the estate any interest in a plan or trust that contains a transfer restriction enforceable under any relevant nonbankruptcy law.” Patterson v. Shumate, 504 U.S. 753, 758, 112 S.Ct. 2242, 2246, 119 L.Ed.2d 519 (1992). In Patterson v. Shumate, the Supreme Court held that funds in ERISA-qualified plans constitute one form of the property described in § 541(c)(2) and are thus excluded from the estate. Patterson, 504 U.S. at 760, 112 S.Ct. 2242 (The anti-alienation provision required for ERISA-qualification constitutes a trust enforceable under applicable nonbankruptcy law.). Thus, the issue before the Court is whether the debtor has an interest in her former husband’s ERISA-qualified plan. A QDRO is a domestic relations order that “creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.” 29 U.S.C. § 1056(d)(3)(B). It is a statutory exception to ERISA’s strict prohibition against the alienation of pension plan funds. 29 U.S.C. § 1056(d)(3)(A). “The QDRO exception was enacted to protect the financial security of divorcees.” Gendreau v. Gendreau (In re Gendreau), 122 F.3d 815, 817 (9th Cir.1997). The case of Nelson v. Ramette (In re Nelson), 274 B.R. 789 (8th Cir. BAP 2002), involved facts similar to those before the Court. There, the debtor had been awarded an interest in his former wife’s ERISA-qualified retirement plan in the amount of $71,000 pursuant to a divorce judgment and a qualified domestic relations order. Upon filing his bankruptcy petition, the debtor asserted that his interest in the retirement plan was excluded from the estate under § 541(c)(2) or exempt under § 522(d)(5) or § 522(d)(10)(E). The" }, { "docid": "12402374", "title": "", "text": "under federal law were excluded as well. Id. Whetzal, 32 F.3d at 1304. Finally, the Eighth Circuit Court of Appeals found that, because it had concluded that the anti-alienation provisions of ERISA were dispositive of whether benefits were excludable from a bankruptcy estate, the Shumate decision emphasized the Supreme Court’s view that protecting pension benefits is a more important policy than the bankruptcy policy of a broad inclusion of property in the estate. Id. Consequently, in considering whether benefits in a plan with the Civil Service Retirement System, which had restrictions on alienation similar to those in an ERISA plan, were includable in the bankruptcy estate, the Eighth Circuit Court of Appeals held that “the debtor’s option to withdraw lump-sum benefits from the [plan] did not serve to make these benefits ‘property’ includable in the debtor’s estate under the Bankruptcy Code.” Id. at 1304-05. Decisions of other courts are even more squarely on point and demonstrate the correctness of the bankruptcy court’s decision in the present case. In a recent decision, In re Conner, 73 F.3d 258 (9th Cir.1996), the Ninth Circuit Court of Appeals relied on Shumate to dispense with the analysis of the debtor’s control of assets asserted by the appellant here: [U]nder Shumate, ERISA plans are exempted from the bankruptcy estate, even though ERISA only requires restraints on alienation to third parties. In interpreting the § 541(c)(2) exemption to cover ERISA plans, the Supreme Court appears to have discounted any distinctions based on the debtors’ control of their assets. Thus, the appellant’s argument that we should conduct a functional analysis focusing on the debtors’ control of the assets in the ERISA Plan has been rejected by the Supreme Court. In re Conner, 73 F.3d at 260. In so holding, the Ninth Circuit Court of Appeals reaffirmed its prior decision in In re Rueter, 11 F.3d 850 (9th Cir.1993), which had held that a debtor’s interest in an ERISA qualified plan was excluded from the property of the estate, even though the plan allowed employees to withdraw their own contributions at any time and to withdraw employer contributions" }, { "docid": "18773007", "title": "", "text": "of her salary to the plan. Those required contributions were made with after tax dollars. Debtor’s required plan contributions exceed the amount of $3,347.00. Debtor could withdraw from participation in the pension plan, however, no amounts contributed to the pension plan can be withdrawn so long as debtor remains employed by General Electric. Payments from the plan to its participants occur only when the participant’s employment is terminated, the participant retires, the participant dies, or the participant becomes disabled. The plan has an anti-alienation clause which forbids participants from transferring their interest to another and forbids creditors of participants or beneficiaries from reaching the assets of the plan. The plan qualifies for tax benefits under the Internal Revenue Code and the Employee Retirement Income Security Act (ERISA). The Trustee seeks turnover only of that portion of the plan which was contributed by the debtor with after tax dollars. In concluding that the contributions of the debtor to the plan were not property of the bankruptcy estate, the bankruptcy court erroneously relied upon pre-1978 bankruptcy law. Prior to the Bankruptcy Code, passed in 1978, only property which was not exempt passed to the trustee in bankruptcy. Bankruptcy Act § 70(a)(5). The determination of whether, under the Bankruptcy Act, a particular asset was exempt, was based on the nature of the asset, focusing on whether the asset related to the debtor’s past or the debtor’s future. E.g., Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974). Property was exempt from the bankruptcy estate under the Act if the asset related to the future. Id. The Bankruptcy Code of 1978 broadened “what is included in the bankruptcy estate by eliminating Act concepts of leviability, transferability, vested title and fresh start.” In re DiPiazza, 29 B.R. 916, 918 (Bankr.N.D.Ill.1983). Section 541(a)(1) provides that a bankruptcy “estate is comprised of ... except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interest of the debtor in property as of the commencement of the case.” Section 541(c)(2) provides that “a restriction on the transfer of a beneficial" }, { "docid": "18882202", "title": "", "text": "of the estate under Section 541 as being in the nature of a spendthrift trust under 541(c)(2). McLean v. Central States Southeast & Southwest Areas Pension Fund, 762 F.2d 1204 (4th Cir.1985) (contributions to the Central Fund are made only by employers and the employees have no power to revoke the trust and reach its corpus).” The Trustee cites an authority for his position the case of In re Sheppard, 106 B.R. 724 (Bankr.M.D.Fla.1989), where the court had under consideration an ERISA employee Thrift Plan of the Debtor’s employer, Florida Power and Light Company. Under that thrift or savings plan, the employee contributed 1% to 16% of their pay with some matching contribution by the company. The purpose of the plan was for the employee to save over a long period of time, but if the employee’s employment terminates before retirement, death or age 70, the employee receives only his vested contributions in the plan. In Sheppard, the Debtors used the funds to purchase company stock. The court held the Florida pension exemption statute was pre-empted by ERISA and that ERISA plan funds are not spendthrift trusts under § 541(c)(2), citing as authority In re Goff, supra, In re Graham, supra, and Reagan v. Ross, 691 F.2d 81 (2nd Cir.1982). As can be seen from the Sheppard case, it varies significantly from In re Kincaid, where the company contributions were conceded to be within the definition of a spendthrift trust, since only the Debtor’s voluntary payments into the ERISA plan became property of the estate. In the case sub judice, the Debtor’s contributions into ESOP total $177.32, with the balance of its funds contributed by the company. In addition, the Debtor’s right to borrow the vested funds is seriously curtailed by the provision which requires financial hardship and approval by the trust. The fact that a beneficiary may borrow from the trust does not necessarily invalidate a spendthrift clause. This a particularly true where the Trustee is not obli gated to make the loan. In re West, 81 B.R. 22, 25 (9th Cir.BAP 1987). In West, the Debtor was not" }, { "docid": "16061613", "title": "", "text": "Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992). The BAP decision is published at 165 B.R. 901 (9th Cir. BAP 1994). Judge Jones filed a concurring opinion in the BAP decision, questioning the soundness of our holding in In re: Rueter that under Shumate, an ERISA plan’s anti-alienation provision was sufficient to exclude the plan from the bankruptcy estate. Jones’ concurrence pointed out that although the Conners’ plan had an anti-alienation provision, the particular assets at issue here were after tax payments to which the debtors had complete access, and which Janice Conner could withdraw at any time. In this appeal, the trustee emphasizes debtor access and control. He argues that because Congress intended traditional trust law principles to apply, we should hold that funds cannot be placed in trust, beyond the reach of creditors, while remaining within the control of the debtor. The trustee essentially asks us to overrule our decision in In re: Rueter, which is something only an en bane court can do. In Rueter, we held that a debtor’s interest in an ERISA qualified plan was excluded from the “property of the estate,” even though the plan allowed employees to withdraw their own contributions at any time and to withdraw employer contributions after two years. See In re: Rueter, 11 F.3d at 851. We reached that conclusion while relying upon the Supreme Court’s decision in Shumate. Rueter was correctly decided. The Supreme Court’s decision in Shumate was prompted by a split among the circuits as to whether the anti-alienation provision in an ERISA qualified pension plan constituted a transfer restriction, enforceable under “applicable non-bankruptcy law” within the meaning of § 541(c)(2), so as to exempt ERISA plans from the bankruptcy estate. 504 U.S. at 757-58, 112 S.Ct. at 2246. The issue in Shumate was whether the phrase “applicable non-bankruptcy law” included federal as well as state law. Our own court had held that the ERISA anti-alienation provision was not sufficient, and that the § 541(e)(2) exclusion was limited to pension plans that qualified under state law as spendthrift trusts. In re" } ]

[ { "docid": "23022750", "title": "", "text": "that the reorganization may be had though no equity remains in the corporation. The order directing the Union Trust Company of Maryland to transfer its collateral to the new corporation is fully warranted by subdivision (h) of section 77B (11 USCA § 207 (h) which states that “the property dealt with by the plan, when transferred and conveyed * * * to the other corporation * * * provided for by the plan,-shall be free and clear of all claims of the debtor, its stockholders and creditors, except such as may consistently with the provisions of the plan be reserved in the order confirming the plan or directing such transfer and conveyance or retention, and the court may direct the trustee or trustees, or if there be no trustee, the debtor and any mortgagee,- the trustee of any obligation of the debtor, and all other proper and necessary parties, to make any such transfer or conveyance. * * * ” Likewise clause 9 of subdivision (b), § 77B, Bankr. Act, 11 USCA § 207 (b), (9), states that the plan “shall provide adequate means for the execution of the plan, which may include the transfer of all or any part of the property of the debtor to another corporation * * * the distribution of assets among creditors or any class thereof, the satisfaction or modification of liens, indentures, or other similar instruments.” ’ It seems evident from the foregoing that the order is fully in accord with the requirements of section 77B. But it is argued that the direction to the Union Trust Company of Maryland to surrender its collateral to the National Bondholders Corporation, even if warranted by section 7/B, is invalid (1) because section 77B, as it has been applied to the facts here, is not within the power granted to Congress by the Constitution (article 1, § 8, cl. 4) to establish form laws on the subject of bankruptcies ; and (2) because, as so construed, it would violate the Fifth Amendment. The scope of the power of Congress to establish “laws on the subject of" } ]

[ { "docid": "21376195", "title": "", "text": "reserves for depreciation— run in favor of the debtors, Postal and Associated. And if Commercial respects the plan, its whole setup will be changed, with, among other things, nearly $50,000,-000 of assets book value being eliminated. “Creditor” means the holder of any claim; “claims” include “all claims of whatever character against a debtor or its property, except stock, whether or not such claims are provable under section 63 [103] of this act [title] and whether secured or unsecured, liquidated or unliquidated, fixed or contingent.” Chapter X, § 106(1), (4), 11 U.S.C.A. § 506(1, 4). Compare 77B, sub. b(10), 11 U.S.C.A. § 207, sub. b(10). See Gerdes, Corporate Reorganizations, § 1044; Foust v. Munson S. S. Lines, 299 U.S. 77, 82, 57 S.Ct. 90, 81 L.Ed. 49. But cf. In re Prudence Bonds Corp., 2 Cir., 79 F.2d 212, 215, semble. This is apparently but a succinct statement of the scattered provisions of 77B, in subs, g and h, 11 U.S.C.A. § 207 subs, g, h. Compare 77B, sub. g, 11 U.S.C.A. § 207, sub. g. The provisions of the Chandler Act, Chapter X, apply to proceedings wherein the petition was approved more than three months before the statute’s effective date “to the extent that the judge shall deem their application practicable.” § 276, sub. e(2), 11 U.S.C.A. § 676, sub. c(2). Appellant’s claim should not he' prejudiced by reason of the fact that it was not in existence at the commencement of reorganization proceedings. Appellant’s position is fairly analogous to that of a claimant under a tort committed during the administration of the estate. Such a claimant would have a preferred charge on the assets of the debtor-. Gerdes, Corporate Reorganizations, § 1180. Cf. § 77, sub. n. of the Railroad Reorganization chapter, 11 U.S.C.A. § 205, sub. n. Unless and to the extent that Commercial may be bound by the decree herein. See note 3 supra. In fact, the reorganization court could enjoin the commencement of a suit against Associated in any other court. Chapter X, § 116(4), 11 U.S.C.A. § 516(4). See Foust v. Munson S. S. Lines," }, { "docid": "6496466", "title": "", "text": "is not sold immediately were also found in General Bankruptcy Order No. XVIII(3), adopted by the Supreme Court in 1898. General Order in Bankruptcy No. XVIII, 89 F. viii (November 28, 1898). Prom 1898 through 1937, the Bankruptcy Act did not contain a specific provision permitting pre-adjudication sales of a debtor’s property. But, pursuant to General Order XVIII, this Circuit over fifty years ago upheld an order that approved a private, pre-adjudication sale of a bankrupt’s stock of handkerchiefs. Not only was merchandise sold at a price above its appraised value, but Christmas sales had commenced and the sale of handkerchiefs would decline greatly after the holidays. Our court held that the concept of “perishable” was not limited to its physical meaning, but also included property liable to deteriorate in price and value. In re Pedlow, 209 F. 841, 842 (2d Cir.1913). See Hill v. Douglass, 78 F.2d 851, 853-54 (9th Cir.1935) (sale of road-making equipment of a contractor to prevent its repossession approved). B. Chandler Act of 1938 — The “Upon Cause Shown” Standard Section 116(3) of the 1938 Act, which was the immediate predecessor of § 363(b), was originally enacted as section 77B(c) in 1937. Section 116(3) provided: “Upon the approval of a petition, the judge may, in addition to the jurisdiction, powers and duties hereinabove and elsewhere in this chapter conferred and imposed upon him and the court ... (3) authorize a receiver or a trustee or a debtor in possession, upon such notice as the judge may prescribe and upon cause shown, to lease or sell any property of the debtor, whether real or personal, upon such terms and conditions as the judge may approve.” This section applied in Chapter X proceedings, and a similar provision, § 313(2), pertained to Chapter XI cases. Thus, when reorganization became part of the bankruptcy law, the long established administra-five powers of the court to sell a debtor’s property prior to adjudication were extended to cover reorganizations with a debtor in possession under Chapter XI pursuant to § 313(2), 11 U.S.C. §§ 701 et seq., as well as a trustee" }, { "docid": "11447609", "title": "", "text": "and confirmation, be deemed a creditor. The 'claim of the landlord for injury resulting from the rejection of an unexpired lease of real estate or for damages or indemnity under a covenant con tained in such lease shall be provable, but shall be limited to an amount not to exceed the rent, without acceleration, reserved by such lease for the three years next succeeding the date of the surrender of the premises to the landlord or the date of reentry of the landlord, whichever first occurs, whether before or after the filing of the petition, plus unpaid accrued rent, without acceleration, up to such date of surrender or reentry.” The question here presented is novel and new. Since the enactment of the Chandler Act (1938) this point has not been passed on. Counsel herein have not furnished me with any precedent nor have I been able to find any. § 70, sub. b, is new. It was part of the Chandler Act enacted in 1938. Prior to that act there was no express authority given to Trustees to assume or reject ex-ecutory contracts. § 116(1) while enacted in 1938 was not really new; a similar provision was to be found in the former reorganization provisions of the Bankruptcy Act, § 77B, 11 U.S.C.A. § 207. There is another section of Chapter X which has some relevancy to the question involved here. § 216 and § 216(4) which read as follows: “Sec. 216. A plan of reorganization under this chapter— * * * (4) may provide for the rejection of any executory contract except contracts in the public authority ;” Both Sections 116(1) and 216(4) of the present law had their counterpart in the old 77B as follows: “Sec. 77(b) (6). A plan of reorganization within the meaning of this section * * * (6) may reject contracts of the debtor which are executory in whole or in part, including unexpired leases except contracts in the public authority.” “Sec. 77B (c) (5) * * * the judge * * * (5) may direct the rejection of contracts of the debtor executory" }, { "docid": "23075962", "title": "", "text": "Assurance Ass’n v. Sims, 318 U.S. 608, 63 S.Ct. 807, 87 L.Ed. 1032, throws some doubt on the scope of that section, the Sims case has been held to authorize a sale in pursuance of a Chapter X plan, at least where the original Chapter X petition was filed in good faith But Chapter XI, 11 U.S.C.A. § 701 et seq., contains no provision such as- § 216(10) ; and Section 101, part of Chapter X, 11 U.S.C.A. § 501 et seq., states: “The provisions of this chapter shall apply exclusively to proceedings under this chapter.” A report of the Senate Judiciary Committee, in connection with the 1938 revision of the Bankruptcy Act, said that § 101 “prevents the extension and application of any provisions of Chapter X to other chapters of this bill.” There are good reasons why Congress, provided that a sale of all assets may be-part of a Chapter X plan but did not so-provide with respect to a Chapter XI arrangement: In Chapter X, under § 167, an independent trustee ordinarily investigates, all matters relating to the property of the company, examines the officers of the debtors and others concerning.such matters;, under § 169, the trustee prepares and presents the plan which the judge considers together with objections or alternative plans-proposed by any creditor; under § 175,, only after the judge approves the piando the creditors vote on it; under § 176, consents to a plan can ordinarily not be- obtained until the judge has approved it; and under § 216(10) the sale must be “at not less than a fair upset price”. The difference between a Chapter X and a Chapter XI plan is the more striking when, as here, the Chapter XI petition is filed under § 322, for then no trustee is appointed to administer the estate before confirmation of the arrangement. It is true that § 306(1) defines a Chapter XI arrangement as “any plan of a debtor for the settlement, satisfaction, or extension of the time of payment of his unsecured debts, upon any terms”. It is urged that this section" }, { "docid": "10303944", "title": "", "text": "business with or without supervision or control by a receiver or by a committee of creditors or otherwise.” Under 357(8), it may include “any other appropriate provisions not inconsistent with this chapter.” Finally, under Section 313 (2), the court may “authorize the receiver or trustee, or the debtor in possession, to lease or sell any property of the debtor, whether real or personal, upon such terms and conditions as the court may approve.” There is the additional consideration that ultimate liquidation of all the assets of a debtor has been held within the scope of a reorganization under 77B, 11 U.S.C.A. § 207, and Chapter X, 11 U.S.C.A. § 501 et seq., proceedings. In re Porto Rican American Tobacco Company, 2 Cir., 112 F.2d 655; In re Central Funding Corporation, 2 Cir., 75 F.2d 256. The generality of Sec tion 306(1), under Chapter XI, seems adequate to include the more specific provisions of Section 216(10) under Chapter X and of old Section 77B, sub. b(9) from which 216(10) was drawn and under which the latter case was decided. The next question has to do with the alleged fraudulent transfers within one year, and preferential transfers within four months prior to the petition, pursuant to a fraudulent “conspiracy” with the four principal creditors, with the alleged consequent prevention of substantial recoveries for the benefit of creditors. On this branch of the case there is little that I can add to what the Referee has written. Viewed against the background of publishing practice described in the opinion of the Referee, the proof falls short of establishing that the assignments of accounts receivable were not perfectly valid security transactions. Greey v. Dockendorff, 231 U.S. 513, 34 S.Ct. 166, 58 L.Ed. 339. Work on the magazine by the four principal \"creditors started in the second month preceding the month of issue. Perkins delivered the paper to Cuneo. Cuneo received copy of the issue. Scribner’s Sons and Beck did the greater part of the composition and electrotyping, and engraving, respectively, at this early date. It then became necessary to assign certain advertising accounts to Perkins" }, { "docid": "23126007", "title": "", "text": "General Carpet Corp., 3 Cir., 116 F.2d 426, December 13, 1940. The expression of this policy to limit allowances here to merely the expenses of a single committee becomes even clearer by a contrast Of the allowance section of Chapter XI, cited above, with the provisions of § 77, sub. c(8), 11 U.S.C.A. § 205, sub. c(8); of Chapter X— §§ 242-249, 216(3), 11 U.S.C.A. §§ 642-649, 616(3); of Chapter XII — §§ 492(1), 461(8), 437(2), 11 U.S.C.A. §§ 892(1), 861 (8) , 837(2) ; and of former § 77B, sub. c (9) , 11 U.S.C.A. § 207, sub. c(9), in which allowances to more than one committee are clearly permitted. Such considerations as these have brought about a refusal of allowances to attorneys for creditors in ordinary bankruptcy (In re Eureka Upholstering Co., 2 Cir., 48 F.2d 95), to creditors’ committees in proceedings for composition both under former § 12, 11 U.S.C.A. § 30 (In re Realty Associates Securities Corp., supra), and former § 74, 11 U.S.C.A. § 202 (In re Faour, 2 Cir., 78 F.2d 1015, affirming D.C.S.D.N.Y., 11 F.Supp. 462), as well as to unofficial committees under Chapter XI itself (In re Max Fishman, Inc., supra). Appellees contend, however, that the allowances covered by Paragraph XI are payable as ordinary contract claims, under § 357(6), 11 U.S.C.A. § 757(6), which specifies as a permissible part of an arrangement “provisions for payment of debts incurred after the filing of the petition and during the pendency of the arrangement, in priority over the debts affected by such arrangement.” The referee held against them on the ground that none had complied with the prescribed procedure for submitting proof of claim, such as was had in Re Fisher Dress Corp., supra, and would have entitled them to recognition under § 357(6). We view that as merely a formal objection, for the time limit of § 57, sub. n, 11 U.S.C.A. § 93, sub. n, could not be supposed to apply to debts payable under § 357(6), which may not have been incurred within six months of the first meeting of creditors." }, { "docid": "23075972", "title": "", "text": "for ordinary bankruptcy where initially the only object of the arrangement is liquidation and distribution of the debtor’s assets. This is not such a case. No one doubts that the original plan of arrangement satisfied the requirements of Chapter XI or that it was offered in good faith. The question presented is whether a bankruptcy court may, after an initial plan has proved unworkable, order the sale of the debtor’s assets and distribute the proceeds pursuant to an arrangement under Chapter XI. In my opinion the provisions of Chapter XI are broad enough to permit it to do so. In section 306(1), 11 U.S.C.A. § 706(1), “arrangement” is defined to include “any plan of a debtor for the settlement, satisfaction, or extension of the time of payment of his unsecured debts, upon any terms”. The court “may” authorize the sale of “any property of the debtor * * * upon such terms and conditions as the court may approve”. Section 313(2), 11 U.S.C.A. § 713(2). The arrangement “may” include provisions for the continuation of the debtor’s business or “any other appropriate provisions not inconsistent with this chapter.” Section 357(5) and (8), 11 U.S.C.A. § 757(5) and (8). In sharp contrast with the grants of permissive authority which these sections vest in the court, section 356, 11 U.S.C.A. § 756, is mandatory: the arrangement “shall include provisions modifying or altering the rights of unsecured creditors”. The modified arrangement, which the court confirmed, divided the creditors into three classes, provided payment in full for two of the classes and pro rata partial payment for the third class, and proposed a sale of the debtor’s assets to obtain the funds necessary to carry out the arrangement. In my opinion the proposed alteration of the rights of the third class is within section 357(1) and the proposal to raise the necessary funds by a sale is a permissible provision within section 357(8). My brothers suggest that the confirmed arrangement made no change in the rights of the unsecured creditors as between merchandise creditors and note-holder creditors, since the merchandise creditors would be entitled in" }, { "docid": "11274136", "title": "", "text": "property and continued the operation of its business. The Chapter XI petition was filed on May 22, 1953, without notice to the receiver or the creditors in the state court, and on the same date an order was entered directing the receiver to turn over to the debtor the property held by him as receiver. Motions by the receiver and •one of the principal creditors to vacate the turn over provisions of this order were denied and the receiver and the creditor have appealed. We think there was error in entering the turn over order when it appeared that the property involved was held by the state court through its receiver and had been so held for approximately twenty-one months prior to the filing of the petition. There is nothing in the Bankruptcy Act which permits a debtor corporation which has sought the haven of a state court receivership and enjoyed it for nearly two years to put an end to that court’s jurisdiction and retake possession of its property by the simple expedient of filing with a court of bankruptcy a petition seeking an arrangement with creditors under Chapter XI, and obtaining a turn over order from that court. On the contrary, the amendment of the Bankruptcy Act which added Chapter XI to that statute expressly forbids the entry of such a turn over order, except in Chapter X and Chapter XII proceedings, 11 U.S.C.A. §§ 501 et seq., 801 et seq., after the receiver has been in possession of the property for more than four months. Chapter 2, sec. 2, sub. a(21), 52 Stat. 844, which prescribes the powers of courts of bankruptcy with relation to turn over orders, provides that the court shall have power to— “(21) Require receivers or trustees appointed in proceedings not under this Act, assignees for the benefit of creditors, and agents authorized to take possession of or to liquidate a person’s property to deliver the property in their possession or under their control to the receiver or trustee appointed under this Act or, where an arrangement or a plan under this Act" }, { "docid": "7952763", "title": "", "text": "the filing of the Petition for Arrangement, 11 U.S.C.A. § 712. This disposes of the case, except that it may be well to answer a further contention of the temporary receivers. They insist that the debtor was barred from instituting .arrangement proceedings because the decree of the State Court, in establishing the receivership, ordered that the officers, agents and attorneys of the debtor “refrain in all respects from in any way interfering or attempting to interfere with your temporary receivers in their duties as receivers”. No such contention can be accepted as valid by this Court, otherwise it would have the effect of depriving the debtor of its constitutional right to relief under Chapter XI of the Bankruptcy Act. In re Mt. Forest Fur Farms of America, 6 Cir., 103 F.2d 69, 71. It is therefore ordered, adjudged and decreed that the Order of the Referee dismissing the debtor’s Petition for Arrangement under Chapter XI of the Bankruptcy Act, for the reasons stated, be and hereby is Reversed, . “Require receivers or trustees appointed in proceedings not under this Act, assignees for the benefit of creditors, and agents authorized to take possession of or to liquidate a person’s property to deliver the property in their possession or under their control to the receiver or trustee appointed under this Act or, whore an arrangement or a plan under this Act has been confirmed and such, property has not prior thereto been delivered to a receiver or trustee appointed under this Act, to deliver such property to the debtor or other person entitled to such property according to the. provisions of the arrangement or plan, and in all such eases to account to the court for the disposition by them of the property of such bankrupt or debtor: Provided, however, That such delivery and accounting shall not be required, except in proceedings under section 77 and chapters 10 and 12 of this Act, 11 U.S.C.A. §§ 205, 501 et seq., 801 et seq., if the receiver or trustee was appointed, the assignment was made, or the agent was authorized more than four" }, { "docid": "10303943", "title": "", "text": "or for any consideration.” The plan meets this requirement by the proposed acceptance of the offer of Esquire, Inc., to satisfy claims on account of unfilled subscriptions by delivery of its own magazine. The plan, in my opinion, was not vitiated by inclusion therein of provisions for liquidation and distribution, even though it be assumed that an arrangement, the sole purpose of which is liquidation of the debtor’s assets, is not within the scope of Chapter XI. Whatever may have been the law under the composition sections of the old statute, I am quite clear that the terms of the present act force such a conclusion today. Section 306(1) defines an “arrangement” as “any pirn of a debtor for the settlement, satisfaction, or extension of the time of payment of his unsecured debts, upon any terms.” This is extremely broad language. Section 357 enumerates certain permissive — ■ in contradistinction to the mandatory language of Section 356 — provisions for arrangements. Thus, under Section 357(5), an arrangement may include “provisions for continuation of the debtor’s business with or without supervision or control by a receiver or by a committee of creditors or otherwise.” Under 357(8), it may include “any other appropriate provisions not inconsistent with this chapter.” Finally, under Section 313 (2), the court may “authorize the receiver or trustee, or the debtor in possession, to lease or sell any property of the debtor, whether real or personal, upon such terms and conditions as the court may approve.” There is the additional consideration that ultimate liquidation of all the assets of a debtor has been held within the scope of a reorganization under 77B, 11 U.S.C.A. § 207, and Chapter X, 11 U.S.C.A. § 501 et seq., proceedings. In re Porto Rican American Tobacco Company, 2 Cir., 112 F.2d 655; In re Central Funding Corporation, 2 Cir., 75 F.2d 256. The generality of Sec tion 306(1), under Chapter XI, seems adequate to include the more specific provisions of Section 216(10) under Chapter X and of old Section 77B, sub. b(9) from which 216(10) was drawn and under which the latter" }, { "docid": "23055795", "title": "", "text": "amount of $692.37 are held by the trustee subject to the outcome of this appeal. It is settled, both in ordinary bankruptcy (Mueller v. Nugent, 184 U.S. 1, 22 S.Ct. 269, 46 L.Ed. 405; Isaacs v. Hobbs Tie & Timber Co., 282 U.S. 734, 51 S.Ct. 270, 75 L.Ed. 645) and in, corporate reorganization proceedings under old Section 77B, 11 U.S.C.A. § 207 (In re Martin Custom Made Tires Corp., 2 Cir., 108 F.2d 172), that property in the actual or constructive possession of the bankrupt when the petition is filed vests in the trustee and becomes subject to the exclusive jurisdiction of the bankruptcy court.’ Except where inconsistent with other provisions of Chapter XI, all provisions of Chapters I to VII, 11 U. S.C.A. §§ 1-112, are applicable to an arrangement proceeding (Bankruptcy Act, § 302), the debtor in possession has the powers of a trustee (§ 342), and the court in which the petition for an arrangement is filed has “exclusive jurisdiction of the debtor and his property, wherever located.” § 311. The indicated conclusion is, therefore, that leave of the court is necessary to the rightful removal of property from the possession of the trustee or debtor-in-possession under an arrangement proceeding. But the mortgagee argues that the jurisdiction of the court and the title of the' trustee under Chapter XI, unlike the situation in ordinary bankruptcy or in Chapter X, 11 U.S.C.A. § 501 et seq., proceedings do not extend to property on which a lien is held, because an arrangement may not alter the rights of secured creditors, §§ 306(1), 307(1, 2), 357; nor did the arrangement actually proposed in this case purport to do so. This, however, is not inconsistent with the exclusive jurisdiction of the court over mortgaged property. Under ordinary bankruptcy, too, the rights of secured creditors may not be curtailed (former Act, § 67, sub. d, 11 U.S.C.A. § 107, sub. d; present Act; § 57, sub. h, 11 U.S.C.A. § 193, sub. h; In re American Motor Products Corp., 2 Cir., 98 F.2d 774) ; and the object of the court’s" }, { "docid": "8942929", "title": "", "text": "912, 11 U.S.C.A. § 207, contemplates the rehabilitation of financially ailing business corporations under plans of reorganization which may deal with claims of creditors, secured as well as unsecured, and embrace all of the debtor’s property, however encumbered with outstanding security interests. In keeping with this objective, appropriate broad powers are conferred upon the reorganization court. Section 111 provides that for the purposes of ¡Chapter X the reorganization court shall “have exclusive jurisdiction of the debtor and its property, wherever located.” Section 115 provides that, upon approval of a petition for reorganization, the court may, in addition to the powers elsewhere conferred upon it, “exercise all the powers, not inconsistent with the provisions of this chapter, which a court of the United States would have if it had appointed a receiver in equity of the property of the debtor on the ground of insolvency or inability to meet its debts as they mature.” Sections 256 and 257 read as follows: “§ 256. A petition may be filed under this chapter notwithstanding the pendency of a prior mortgage foreclosure, equity, or other proceeding in a court of the United States or of any State in which a receiver or trustee of all or any part of the proper ty of a debtor has been appointed or for whose appointment an application has been made. “§ 257. The trustee appointed under this chapter, upon his qualification, or if a debtor is continued in possession, the debt- or, shall become vested with the rights, if any, of such prior receiver or trustee in such property and with the right to the immediate possession thereof. The trustee or debtor in possession shall also have the right to immediate possession of all property of the debtor in the possession of a trustee under a trust deed or a mortgagee under a mortgage.” Section 256 and the first sentence of § 257 obviate for purposes of Chapter X the restrictive interpretation of old § 77B in Duparquet Huot & Moneuse Co. v. Evans, 1936, 297 U.S. 216, 56 S.Ct. 412, 80 L.Ed. 591. See In re" }, { "docid": "10303945", "title": "", "text": "case was decided. The next question has to do with the alleged fraudulent transfers within one year, and preferential transfers within four months prior to the petition, pursuant to a fraudulent “conspiracy” with the four principal creditors, with the alleged consequent prevention of substantial recoveries for the benefit of creditors. On this branch of the case there is little that I can add to what the Referee has written. Viewed against the background of publishing practice described in the opinion of the Referee, the proof falls short of establishing that the assignments of accounts receivable were not perfectly valid security transactions. Greey v. Dockendorff, 231 U.S. 513, 34 S.Ct. 166, 58 L.Ed. 339. Work on the magazine by the four principal \"creditors started in the second month preceding the month of issue. Perkins delivered the paper to Cuneo. Cuneo received copy of the issue. Scribner’s Sons and Beck did the greater part of the composition and electrotyping, and engraving, respectively, at this early date. It then became necessary to assign certain advertising accounts to Perkins and Cuneo. While the cost of paper for an issue was “readily ascertained,” Cuneo furnished an “estimate” of the cost of printing; the debtor’s predecessor “estimated” the advertising income to be derived from the issue. A month or two later it became necessary to assign certain proportions of circulation income to Beck and Scribner’s Sons. Here again this income had to be “estimated.” As the Referee said “The amount of their bills, unlike those for merchandise, was not known until their work on an issue was done. The amount of the circulation income was not known or received until at least two months after the issue was circulated.” Mathematical exactitude was impossible under these circumstances. In cases involving the use of book accounts as collateral security, the courts look to the degree of particularity with which the security res is determined. Certainly, however, no greater degree of particularity than is possible under business conditions is required. These considerations, I think, together with others, rid the assignments of the imputation of fraud as a matter of" }, { "docid": "6496467", "title": "", "text": "Section 116(3) of the 1938 Act, which was the immediate predecessor of § 363(b), was originally enacted as section 77B(c) in 1937. Section 116(3) provided: “Upon the approval of a petition, the judge may, in addition to the jurisdiction, powers and duties hereinabove and elsewhere in this chapter conferred and imposed upon him and the court ... (3) authorize a receiver or a trustee or a debtor in possession, upon such notice as the judge may prescribe and upon cause shown, to lease or sell any property of the debtor, whether real or personal, upon such terms and conditions as the judge may approve.” This section applied in Chapter X proceedings, and a similar provision, § 313(2), pertained to Chapter XI cases. Thus, when reorganization became part of the bankruptcy law, the long established administra-five powers of the court to sell a debtor’s property prior to adjudication were extended to cover reorganizations with a debtor in possession under Chapter XI pursuant to § 313(2), 11 U.S.C. §§ 701 et seq., as well as a trustee in control under Chapter X pursuant to § 116(3), 11 U.S.C. §§ 501 et seq. These sections, as their predecessors, were designed to handle leases or sales required during the time lag between the filing of a petition for reorganization and the date when the plan was approved. The Rules of Bankruptcy Procedure applicable in Chapters X and XI, the Act’s reorganization procedures, provided for a sale of all or part of a bankrupt’s property after application to the court and “upon cause shown.” Rules 10-607(b), 11-54. Despite the provisions of this Rule, the “perishable” concept, expressed in the view that a pre-confirmation or pre-adjudication sale was the exception and not the rule, persisted. As one commentator stated, “[ojrdinar-ily, in the absence of perishable goods, or depreciation of assets, or actual jeopardy of the estate, a sale will not be ordered, particularly prior to adjudication.” 1 Collier on Bankruptcy ¶ 2.28(3) (14th ed. 1978) (footnotes omitted). Thirty years after In re Pedlow, supra, in Frank v. Drinc-O-Matic, Inc., 136 F.2d 906 (2d Cir.1943), we upheld" }, { "docid": "11274137", "title": "", "text": "filing with a court of bankruptcy a petition seeking an arrangement with creditors under Chapter XI, and obtaining a turn over order from that court. On the contrary, the amendment of the Bankruptcy Act which added Chapter XI to that statute expressly forbids the entry of such a turn over order, except in Chapter X and Chapter XII proceedings, 11 U.S.C.A. §§ 501 et seq., 801 et seq., after the receiver has been in possession of the property for more than four months. Chapter 2, sec. 2, sub. a(21), 52 Stat. 844, which prescribes the powers of courts of bankruptcy with relation to turn over orders, provides that the court shall have power to— “(21) Require receivers or trustees appointed in proceedings not under this Act, assignees for the benefit of creditors, and agents authorized to take possession of or to liquidate a person’s property to deliver the property in their possession or under their control to the receiver or trustee appointed under this Act or, where an arrangement or a plan under this Act has been confirmed and such property has not prior thereto been delivered to a receiver or trustee appointed under this Act, to deliver such property to the debtor or other person entitled to such property according to the provisions of the arrangement or plan, and in all such cases to account to the court for the disposition by them of the property of such bankrupt or debtor: Provided, however, that such delivery and accounting shall not be required, except in proceedings under chapters X and XII of this Act, if the receiver or trustee was appointed, the assignment was made, or the agent was authorized more than four months prior to the date of bankruptcy.” Debtor calls attention to subsection b of section 2 to the effect that nothing contained in the section shall be construed to deprive a court of bankruptcy of any power it would possess in the absence of the enumeration of specific powers. Aside from the fact that a court of bankruptcy has no general power to enter such a turn" }, { "docid": "23075961", "title": "", "text": "stated the facts as follows: “There was no working capital on hand sufficient to operate the business and the creditors ánd stockholders were unwilling to furnish any. With the approach of warm weather the vats, kettles and other brewery machinery would deteriorate rapidly and lose substantially all their value, while both real and personal property would be absorbed by the mortgagee.” We think § 313(2) must be similarly interpreted. The debtor here, therefore, was obliged to allege and had the burden of proving the existence of an emergency involving imminent danger of loss of the assets if they were not promptly sold. The petition for sale fell far short of alleging such facts. Nor is there a finding of fact, based upon evidence; supporting the conclusion that “cause” had been shown. Such a finding is required. Section 216(10), applicable to a Chapter X proceeding, provides that a plan may authorize the sale of all the assets “at not less than a fair upset price” and the distribution- of the proceeds among the creditors. Although Fidelity Assurance Ass’n v. Sims, 318 U.S. 608, 63 S.Ct. 807, 87 L.Ed. 1032, throws some doubt on the scope of that section, the Sims case has been held to authorize a sale in pursuance of a Chapter X plan, at least where the original Chapter X petition was filed in good faith But Chapter XI, 11 U.S.C.A. § 701 et seq., contains no provision such as- § 216(10) ; and Section 101, part of Chapter X, 11 U.S.C.A. § 501 et seq., states: “The provisions of this chapter shall apply exclusively to proceedings under this chapter.” A report of the Senate Judiciary Committee, in connection with the 1938 revision of the Bankruptcy Act, said that § 101 “prevents the extension and application of any provisions of Chapter X to other chapters of this bill.” There are good reasons why Congress, provided that a sale of all assets may be-part of a Chapter X plan but did not so-provide with respect to a Chapter XI arrangement: In Chapter X, under § 167, an independent trustee ordinarily" }, { "docid": "8942939", "title": "", "text": "owned by the debtor, which the debtor had pledged under mortgage provisions entitling the debtor to receive all dividends and interest paid thereon prior to default. The debtor filed a petition for reorganization under § 77B. The reorganization court denied a petition by the mortgage trustee for an order directing the debtor to pay over to it the amount of dividends and interest theretofore collected by the debtor and any future dividends and interest received on the pledged stocks and bonds. This order of denial was affirmed on appeal. At page 978 of 117 F.2d the court said: “We do not think that any distinction of legal significance may be drawn between the right of a pledgee to' recapture this income upon default and the similar right reserved by a mortgagee. Both must yield to the necessity of preserving intact the business and property of the debtor to the extent reasonably necessary to afford an opportunity for reorganization. Otherwise the effective administration of Section 77B (and its successor Chapter X, 11 U.S.C.A. § 501 et seq.) might depend upon whether the principal assets of a corporation seeking reorganization consisted of real or personal property.” Fidelity-Philadelphia Trust Co. v. Weaver, 3 Cir., 1938, 98 F.2d 471, is not authority for the proposition that a debtor in reorganization under § 77B could not recover pledged stock and cash in the hands of a secured creditor. See the report of the case on the first hearing, sub nom. In re Pennsylvania Central Brewing Co., 3 Cir., 93 F.2d 1012, referring to the proceedings in the district court, 18 F.Supp. 458. From the opinion of the district court it appears that the attempted reorganization under § 77B had failed because the consent of the owners of two thirds of the outstanding bonds could not be obtained, and that the court had ordered the company liquidated. Having satisfied ourselves of the power of the court below to deal with the pledged merchandise inventory in the hands of the secured creditor, in which personal property the debtor retains a substantial equity, we perceive no abuse of" }, { "docid": "16642028", "title": "", "text": ": “For the purposes of the plan and its acceptance, the judge shall fix the division of creditors and stockholders into classes according to the nature of their respective claims and stock. * * * ” Section 216(10) (11 U.S.C.A. § 616; (10)) provides: “A plan of reorganization under this chapter— * * * shall provide adequate means for the execution of the plan, which may include: * * * the sale of all or any part of its. property, either subject to or free from any lien, at not less than a fair upset price and the distribution of all or any assets, or the proceeds derived from the sale thereof, among those having an interest therein; * * * ” Courts have consistently held that a plan for reorganization under the plain language of § 216(10) may include the sale of all or any part of the debtor’s assets and have rejected the argument appellants here make. See, e. g., In re American Bantam Car Co., 3 Cir., 193 F.2d 616, 621; In re Chicago Rys., 7 Cir., 160 F.2d 59, 65; In re Lorraine Castle Apartments Bldg. Corp., 7 Cir., 149 F.2d 55, 59; Country Life Apartments, Inc. v. Buckley, 2 Cir., 145 F.2d 935, 938; In re Porto Rican American Tobacco Co., 2 Cir., 112 F.2d 655, 658. Appellants’ reliance upon Fidelity Assur. Ass’n v. Sims, 318 U.S. 608, 63 S.Ct. 807, 87 L.Ed. 1032, is misplaced. The Court’s decision in that case is based upon several grounds including a finding that the Chapter X petition was not filed in good faith. Sims has been adequately discussed and properly distinguished in the Lorraine Castle Apartments Bldg. Corp. and Country Life Apartments, Inc., cases, supra. In our present case, there is no showing that the petition was not filed in good faith. The record shows that good faith efforts were made to continue the business and reorganization of the corporation. The provisions of Chapter X were in all respects complied with. The reorganization plan was approved by the court and the interested parties as required by statute" }, { "docid": "11447610", "title": "", "text": "to Trustees to assume or reject ex-ecutory contracts. § 116(1) while enacted in 1938 was not really new; a similar provision was to be found in the former reorganization provisions of the Bankruptcy Act, § 77B, 11 U.S.C.A. § 207. There is another section of Chapter X which has some relevancy to the question involved here. § 216 and § 216(4) which read as follows: “Sec. 216. A plan of reorganization under this chapter— * * * (4) may provide for the rejection of any executory contract except contracts in the public authority ;” Both Sections 116(1) and 216(4) of the present law had their counterpart in the old 77B as follows: “Sec. 77(b) (6). A plan of reorganization within the meaning of this section * * * (6) may reject contracts of the debtor which are executory in whole or in part, including unexpired leases except contracts in the public authority.” “Sec. 77B (c) (5) * * * the judge * * * (5) may direct the rejection of contracts of the debtor executory in whole or in part.” Under § 77B, and particularly § 77B (c) (5), the rule was laid down that a Trustee in a reorganization proceeding under § 77B had no such authority to adopt or reject a lease without authorization from the court; that power to reject or assume a lease was not lodged in the debtor nor in the Trustee but devolved exclusively upon the judge. In re Cheney Bros., D.C., 12 F.Supp. 605; Gerdes on Corporate Reorganizations page 1137, section 694 Compare In re Walker, 2 Cir., 93 F.2d 281, 283. With respect to a proper interpretation of § 116(1) of Chapter X, one should look to the congressional intent in enacting this section into the new Chandler Act, the C.C.H. Bankruptcy Service, paragraph 8051.001, pp. 8026--27, citing the report of the Senate Committee on the Judiciary, May 27, 1938, p. 24; states: “Rejection of executory contracts.- — Subsection (1) restates a power over the rejection of executory contracts, except contracts in the public authority, formerly given to the judge by section" }, { "docid": "23055796", "title": "", "text": "indicated conclusion is, therefore, that leave of the court is necessary to the rightful removal of property from the possession of the trustee or debtor-in-possession under an arrangement proceeding. But the mortgagee argues that the jurisdiction of the court and the title of the' trustee under Chapter XI, unlike the situation in ordinary bankruptcy or in Chapter X, 11 U.S.C.A. § 501 et seq., proceedings do not extend to property on which a lien is held, because an arrangement may not alter the rights of secured creditors, §§ 306(1), 307(1, 2), 357; nor did the arrangement actually proposed in this case purport to do so. This, however, is not inconsistent with the exclusive jurisdiction of the court over mortgaged property. Under ordinary bankruptcy, too, the rights of secured creditors may not be curtailed (former Act, § 67, sub. d, 11 U.S.C.A. § 107, sub. d; present Act; § 57, sub. h, 11 U.S.C.A. § 193, sub. h; In re American Motor Products Corp., 2 Cir., 98 F.2d 774) ; and the object of the court’s control is not necessarily the curtailment of rights, but the supervision of their enforcement in order to protect the interests of other creditors, interests .which would be substantial if the property proved to be more than sufficient to satisfy the secured debts. Isaacs v. Hobbs Tie & Timber Co., supra, 282 U.S. at page 738, 51 S.Ct. 270, 75 L.Ed. 645. The mortgagee also argues that, since under § 314 the court “may, upon notice and for cause shown, enjoin or stay until final decree any act or the commencement or continuation of any proceeding to enforce any lien upon the property of a debtor,” retaking possession is permissible where no stay has been entered. But this section also grants the court explicit power to enjoin or stay suits generally, and further provides that the relief it gives is in addition to that afforded by § 11, 11 U.S.C.A. § 29 — granting extensive judicial power over suits by and against i ordinary bankrupts — as well as that • afforded elsewhere under Chapter XI." } ]

[ { "docid": "22641193", "title": "", "text": "the case of leases the deductions allowed by this paragraph shall be equitably appor tioned between the lessor and the lessee” presupposes that the deductions may be allowed in other cases. The language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oh, to which he must look for a return of his capital. That the allowance for depletion is not made dependent upon the particular legal form of the taxpayer’s interest in the property to be depleted was recognized by this Court in Lynch v. Alworth-Stephens Co., 267 U. S. 364. There a depletion allowance under § 12 (a) of the 1916 Act, 39 Stat. 767, was claimed by a lessee of a mining lease, in the computation of tax on income from the proceeds of ore mined. The statute made no specific reference to lessees and the Government argued that as the lessee acquired no ownership of the ore until the severance from the soil (see United States v. Biwabik Mining Co., 247 U.S. 116, 123) the lease gave him no depletable interest in the ore in place. But this Court held that regardless of the technical ownership of the ore before severance, the taxpayer, by his lease, had acquired legal control of a valuable economic interest in the ore capable of realization ,as gross income by the exercise of his mining rights under the lease. Depletion was, therefore, allowed. Similarly, the lessor’s right to a depletion allowance does not depend upon his retention of ownership or any other particular form of legal interest in the mineral content of the land. It is enough if, by virtue of the leasing transaction, he has retained a right to share in the oil produced. If so he has an economic interest in the oil, in place, which is depleted by production. Thus, we have recently held that the lessor is .entitled to a depletion allowance on" } ]

[ { "docid": "12487031", "title": "", "text": "each of the years 1956, 1957, and 1958 was due to negligence. OPINION Petitioner seeks a deduction for depletion of the uranium deposits worked by him under the Union Carbide contracts, alleging the applicability of section 611(a). While the Code section itself does not specify who is entitled to the deduction, the regulations make it eminently clear that depletion may be taken only by one who owns an economic interest in the mineral deposit in place: Sec. 1.611-1 [Income Tax Regs.] Allowance of deduction for depletion. (b) Mconomio interest. (1) Annual depletion deductions are allowed only to tbe owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every ease in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because through a contractual relation he possess [sic] a mere economic or pecuniary advantage derived from production. For example, an agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest. Further, depletion deductions with respect to an economic interest of a corporation are allowed to the corporation and not to its shareholders. The question which we must decide is whether a contract miner under the fact situation here presented has an economic interest in the mineral deposits in place. This very issue has twice been decided adversely to the miners’ position by the Supreme Court of the United States. Paragon Coal Co. v. Commissioner, 380 U.S. 624 (1965); Parsons v. Smith, 359 U.S. 215 (1959). These cases clearly control our disposition of the instant case. Parsons v. Smith, supra, had been decided by the" }, { "docid": "21339989", "title": "", "text": "(b) (1), provides: “Allowance of Deduction for Depletion ****** “(b) Economic interest. (1) annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because through a contractual relation he possess a mere economic or pecuniary advantage derived from production. For example, an agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest * * *» At the outset, it should be noted that present 26 U.S.C.A. § 611 is substantially identical to Section 23 (m) of the Internal Revenue Code of 1939, under which arose the prior litigation, McCall v. Commissioner, supra. That case concerned income taxes for 1952 for the same two Taxpayers and their wives. The agreements between Norma and Youngstown and between Norma and Rebecca were the same as in 1956, as were the other significant facts. It was held (27 T.C. 133, at p. 136) that “ * * * under the terms of the contract [between Norma and Rebecca], the partnership [Rebecca] acquired an economic interest in the coal and was entitled to recover its investment by way of a percentage depletion deduction * * Accordingly, the position of Taxpayers in that litigation was sustained and the tax deficiencies claimed by the Commissioner disallowed. With principal emphasis on Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948), Taxpayers urge that the 1956 McCall case collaterally estopped the Commissioner from reliti-gating the same issues for the" }, { "docid": "17912779", "title": "", "text": "case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. * * * ” Int.Rev.Code of 1936, § 23 (m), 26 U.S.C. §23(m) (1946 ed.). “§ 114. Basis for depreciation and depletion— * * * » * “(4) Percentage depletion for coal * * * “(A) In general. “The allowance for depletion under section 23 (m) shall be, in the case of coal mines, 5 per centum * * * of the gross income from the property during the taxable year, excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 per centum of the net income of the taxpayer (computed without allowance for depletion) from the property, except that in no case shall the depletion allowance under section 23 (m) be less than it would be if computed without reference to this paragraph. “(B) Definition of gross income from property. “As used in this paragraph the term ‘gross income from the property’ means the gross income from mining. * * * ” Int.Rev.Code of 1939, § 114(b) (4), 26 U.S.C. § 114(b) (4) (1946 ed.). . “Under such provisions [Secs. 23 (m) and 114], the owner of an economic interest in mineral deposits or standing timber is allowed annual depletion deductions. * * * An economic interest is possessed in every case in which the taxpayer has acquired, by investment, any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the severance and sale of the mineral or timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because, through" }, { "docid": "6583523", "title": "", "text": "than the prior estimate thereof, then such prior estimate (but not the basis for depletion) shall be revised and the allowance under this section for subsequent taxable years shall be based on such revised estimate. (b) Special rules.— (1) Leases. — In the ease of a lease, the deduction under this section shall be equitably apportioned between the lessor and the lessee. * * * * * * Treas.Reg. Sec. 1.611-1 ALLOWANCE OF DEDUCTION FOR DEPLETION (a) Depletion of mines, oil and gas wells, other natural deposits, and timber. (1) In general. Section 611 provides that there shall be allowed as a deduction in computing taxable income in the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion. In the case of standing timber, the depletion allowance shall be computed solely upon the adjusted basis of the property. In the case of other exhaustible natural resources the allowance for depletion shall be computed upon either the adjusted depletion basis of the property (see section 612, relating to cost depletion) or upon a percentage of gross income from the property (see section 613, relating to percentage depletion), whichever results in the greater allowance for depletion for any taxable year. In no case will depletion based upon discovery value be allowed. * * * * * * (b) Economic interest. (1) Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. * * * * * * (2) No depletion deduction shall be allowed the owner with respect to any timber, coal or domestic iron ore that such owner has disposed of under any form of contract by virtue of which he retains an economic interest in such" }, { "docid": "7793479", "title": "", "text": "The sole issue is whether petitioners, operating as a partnership, are entitled to deductions for depletion of coal deposits, mined by them under contract, for the taxable years 1956 and 1957, under the provi sions of sections 611 and 613 of the Internal Revenue Code of 1954. Section 611(a) provides that “In the case of mines, oil and gas wells, other natural deposits, and timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary or his delegate.” Section 613(a) provides that “the allowance for depletion under section 611 shall be the percentage, specified in subsection (b), of the gross income from the property excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 percent of the taxpayer’s taxable income from the property (computed without allowance for depletion).” Section 613 (b) (4) provides that, in the case of coal, the percentage depletion rate is 10 percent. It is well settled that to be entitled to a deduction for depletion a taxpayer must own an “economic interest” in the mineral deposit mined as distinguished from a mere economic or pecuniary advantage derived from production under a contractual relation to the owner of the resources. Helvering v. Bankline Oil Co., 303 U.S. 362, 367; Palmer v. Bender, 287 U.S. 551, 557; Commissioner v. Southwest Exploration Co., 350 U.S. 308, 314. See also Income Tax Regs., sec. 1.611-1 (b) (1). In the more recent case of Parsons v. Smith, 359 U.S. 215 (1959), decided concurrently with Huss v. Smith, in each of which coal strip miners, operating as a partnership under contract, were denied a depletion deduction, the Supreme Court stated: By their contracts, which were completely terminable without cause on short notice, petitioners simply agreed to provide the equipment and do the work required to strip mine coal" }, { "docid": "8024672", "title": "", "text": "of timber, the IRS has promulgated regulations governing who may claim depletion. Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because through a contractual relation he possesses a mere economic or pecuniary advantage derived from production. For example, an agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest Treas.Reg. § 1.611-l(b)(l) (1973). Although the distinction between “economic interest” and “pecuniary advantage” in the quoted regulation is vague, judicial decisions have clarified the distinction. The Supreme Court has held that a mineral lessee has an economic interest in the minerals and is entitled to claim depletion if the lessee looks to the sale of the minerals in the open market for its return. See Commissioner v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347 (1956); Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489 (1933). Where the lessee is required to sell the minerals removed to the lessor at a predetermined price and does not look to the sale in the open market for its return, however, the lessee does not have an economic interest and may not claim depletion. See Paragon Jewel Coal Co. v. Commissioner, 380 U.S. 624, 85 S.Ct. 1207, 14 L.Ed.2d 116 (1965); Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747 (1959). This court applied principles very similar to those employed by the Supreme Court in the" }, { "docid": "6072052", "title": "", "text": "disposed of under any form of contract by virtue of which he retains an economic interest in such timber or coal, if such disposal is considered a sale of timber or coal under section 117(k) (2). An economic interest is possessed in every case in which the taxpayer has acquired, by investment, any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the severance and sale of the mineral or timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic inter est merely because, through a contractual relation to the owner, he possesses a mere economic advantage derived from production. Thus, an agreement between the owner of an economic interest and another entitling the latter to purchase the product upon production or to share in the net income derived from the interest of such owner does not convey a depletable economic interest.” In a number of cases in this and other circuits the courts have been called on to decide the difficult question whether a taxpayer, who has no legal title to the mining area but has entered into a contract with the owner or lessee of the land to extract the mineral, has an economic interest in the mineral in place within the meaning of the regulation, entitling him to a share in the depletion allowance, or merely an economic advantage derived from the production contract without any interest in the mineral itself. It has been pointed out in these cases that frequently the landowner does not engage in the production of the mineral himself but enters into a production contract with an experienced operator; and in general it has been held, following the lead of the Supreme Court in Burton-Sutton Oil Co. v. Commissioner, 328 U.S. 25, 66 S.Ct. 861, 90 L.Ed. 1062, that since depletion depends upon production, the determining factor in passing on the right to the deduction is not the legal title to" }, { "docid": "6583496", "title": "", "text": "its § 631(b) capital gains as,ordinary income, the court now turns to evaluate whether the second prong of the test is satisfied, i.e., whether, pursuant to its contracts with IP, ILC acquired property subject to a depletion allowance. 2. Property Acquired Subject To Depletion Under a deferred intercompany transaction, if property acquired by an affiliate is subject to depreciation, depletion, or amortization, the transferor affiliate must treat a portion of the gain or loss on the transfer as ordinary income for each taxable year a deduction is allowed. Treas.Regs. §§ 1.1502-13(c)(4)(ii) and (d)(1). Section 611 of the I.R.C. provides that, when standing timber is cut, the owner of the standing timber may recognize the depletion of the capital resource by deducting a certain amount of the depletable basis in the timber from the owner’s gross income from timber cutting. Prescribing the circumstances in which a depletion deduction is allowed under § 611, Treas.Reg. § 1.611-1(b)(1) provides, in relevant part, that: Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. Treas.Reg. § 1.611-1(b)(1) (emphasis added). In short, this regulation sets forth a two-pronged test for determining when a taxpayer is allowed to take a depletion deduction in standing timber. First, the taxpayer must own an “economic interest” in standing timber which the taxpayer has “acquired by investment.” Second, the taxpayer must derive income from the harvesting of the timber from which the taxpayer seeks a return of capital. This test, originally set forth by the U.S. Supreme Court in Palmer v. Bender, 287 U.S. at 557, 53 S.Ct. at 226, has been consistently employed in subsequent depletion cases respecting both oil and mineral deposits and standing timber. Georgia-Pacific Corp. v. United States, 648 F.2d" }, { "docid": "21339988", "title": "", "text": "by reason of economic conditions it was unable to sell the coal mined and delivered by Rebecca at a reasonable profit to Norma, upon twenty-four hours’ notice, to require Rebecca to suspend mining. And Norma reserved the right to strip mine any coal which could not be properly mined, by Rebecca, by deep mining. The assessment of deficiencies as a result of disallowance of a depletion deduction was grounded upon 26 U.S.C.A. § 611, reading, in part: “§ 611. Allowance of deduction for depletion “(a) General rule. — In the case of mines, oil and gas wells, other natural deposits, and timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary or his delegate.” To the extent pertinent, Section 1.611-1 (b) (1) of the Regulations under the Internal Revenue Code of 1954, 1 Fed. Tax Reg. (1962 Ed.), § 1.611-1 (b) (1), provides: “Allowance of Deduction for Depletion ****** “(b) Economic interest. (1) annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because through a contractual relation he possess a mere economic or pecuniary advantage derived from production. For example, an agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest * * *» At the outset, it" }, { "docid": "22867520", "title": "", "text": "303 U. S., at 367. Applying that principle, the Court held that a processor who, by contracts with the owners of gas (and oil wells, had acquired the right to take wet gas from the wellheads and to extract and sell the gasoline therefrom, paying the well owners a percentage of the proceeds óf such sales, had not acquired an economic interest in the depleting gas in place but only an economic advantage to be derived from the processing operations, and that therefore the income from those operations was not subject to the depletion deduction. In his first regulations prescribed under the -Internal Revenue Act of 1939, the Commissioner adopted almost literally the language we have quoted from Palmer and Banklihe as the tests to be administratively applied in determining what interests in mineral deposits are em titled to the depletion allowance. See Treas. Reg. 103, § 19.23 (m)-l, August 23, 1939. That language, with immaterial changes, has remained in the regulations ever since. During the years here involved, 1942 through 1950, the regulation in force was Treas. Reg. Ill, § 29.23 (m)-l, which, in pertinent part, provides: “Under [the provisions of §§23 (m) and 114] the owner of an econofnic interest in mineral deposits or standing timber is allowed annual depletion deductions. An economic interest is possessed in every case in which the taxpayer has acquired, by investment, any interest in mineral in place or standing timber and secures, by any form of legal relationship, income .derived from the severance and sale of the .mineral or timber, to which he must look for a return of his capital. But a person who has no capital divestment in the mineral deposit or standing timber does not possess an economic interest merely because, through a contractual relation to the owner, he possesses a mere economic advantage derived from production . . . .” Such are the interests that are permitted a deduction for depletion by the statutes as consistently interpreted by this Court and by the, Commissioner. Petitioners do not dispute that these are the controlling principles, but rather they contend" }, { "docid": "22872400", "title": "", "text": "investment in the coal in place. I think it clear from the facts I have recited that their investment has given them an economic interest in the coal. Bankline Oil held that a processor of natural gas who received the gas at the mouth of the well and “ . had no enforceable rights whatsoever under its contracts prior to the time the wet gas was actually placed in its pipe line/ ” “had no capital investment in the mineral deposit/’ for he “had no interest in the gas in place.” 303 U. S., at 368. The facts that “the taxpayer’s capital investment was in equipment facilitating delivery of the gas produced rather than in equipment for production of gas, . . . that its function’was not production of gas but the processing of gas,” G. C. M. 22730, 1941-1 Cum. Bull. 214, 220, and that the taxpayer had no enforcible right to receive any gas from the well, all adequately distinguish Bankline Oil from the case here before us. “Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. But a person who has n<? capital investment in the mineral deposit or standing timber does not possess an economic interest merely because through a contractual relation he possess [es] a mere economic or pecuniary advantage derived from production. For example, an agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest. Further, depletion deductions with respect to an economic interest of a corporation are allowed to the corporation and not to its shareholders.” Further, I" }, { "docid": "16957109", "title": "", "text": "of capital assets. The opinion in Burnet, supra, described the purpose of the capital gains statute as affording relief to a taxpayer from the impact of taxation on a transaction involving sales of property usually held over a period of years. The Supreme Court pointed out that payments to lessors under mining leases were not a conversion of capital but constituted income like the payment of rent. It is singular to note that the document involved here describes the taxpayer’s income as rent. Palmer v. Bender, supra, first articulated the “economic interest” concept which doctrine has been recognized by the Supreme Court to the present time. Since Palmer, supra, it appears to be settled law that in any mining agreement where a taxpayer retains an economic interest in minerals owned, the transaction should not be considered a sale entitling the owner to capital gains treatment, but as ordinary income subject to the statutory depletion allowance. For a later discussion by the Supreme Court on the “economic interest” concept, see Paragon Coal Co. v. Commissioner, 380 U.S. 624, 85 S.Ct. 1207, 14 L.Ed.2d 116 (1965). This case also approved the Treasury Regulation on the subject which provides: “ * * * An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. * * * ” Treas.Reg. § 1.611-1 (b) (1). There has been much litigation on this subject and a reading of the many cases indicates that it is not always easy to draw a distinction between a transaction constituting a sale of minerals and one which retains an economic interest in the minerals. We do not perceive any such difficult problem here, as certainly there is nothing in the “Lease Contract” between taxpayer and Davis Brothers to remotely suggest a sale of capital assets. We realize that the descriptive language of the document" }, { "docid": "6583524", "title": "", "text": "cost depletion) or upon a percentage of gross income from the property (see section 613, relating to percentage depletion), whichever results in the greater allowance for depletion for any taxable year. In no case will depletion based upon discovery value be allowed. * * * * * * (b) Economic interest. (1) Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. * * * * * * (2) No depletion deduction shall be allowed the owner with respect to any timber, coal or domestic iron ore that such owner has disposed of under any form of contract by virtue of which he retains an economic interest in such timber, coal, or iron ore, if such disposal is considered a sale of timber, coal, or domestic iron ore under section 631(b) or (c). * * * * * * I.R.C. Sec. 612. BASIS FOR COST DEPLETION Except as otherwise provided in this sub-chapter, the basis on which depletion is to be allowed in respect of any property shall be the adjusted basis provided in section 1011 for the purpose of determining the gain upon the sale or other disposition of such property. Treas.Reg.Sec. 1.612-1 BASIS FOR ALLOWANCE OF COST DEPLETION (a) In general. The basis upon which the deduction for cost depletion under section 611 is to be allowed in respect of any mineral or timber property is the adjusted basis provided in section 1011 for the purpose of determining gain upon the sale or other disposition of such property except as provided in paragraph (b) of this section. The adjusted basis of such property is the cost or other basis determined under section 1012, relating to the basis of property, adjusted as provided" }, { "docid": "6072051", "title": "", "text": "Code, provides in effect that the allowance for depletion shall be 10 per cent of the gross income from the property during the tax year, excluding therefrom an amount equal to any rents or royalties paid in respect to the property for the taxpayer; and § 39.23 (m)-l of Treasury Regulations 118 promulgated under the Internal Revenue Code of 1939 contains the following provisions : “Depletion of mines, oil and gas wells, other natural deposits, and timber; depreciation of improvements. “(a) Section 23(m) provides that there shall be allowed as a deduction in computing net income in the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements. Section 114 prescribes the bases upon which depreciation and depletion are to be allowed. “(b) Under such provisions, the owner of an economic interest in mineral deposits or standing timber is allowed annual depletion deductions. However, no depletion deduction shall be allowed the owner with respect to any timber or coal which such owner has disposed of under any form of contract by virtue of which he retains an economic interest in such timber or coal, if such disposal is considered a sale of timber or coal under section 117(k) (2). An economic interest is possessed in every case in which the taxpayer has acquired, by investment, any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the severance and sale of the mineral or timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic inter est merely because, through a contractual relation to the owner, he possesses a mere economic advantage derived from production. Thus, an agreement between the owner of an economic interest and another entitling the latter to purchase the product upon production or to share in the net income derived from the interest of such owner does not convey a depletable economic interest.” In" }, { "docid": "7258735", "title": "", "text": "taxpayer in respect of the property,” and that “Such allowance shall not exceed 50 percent of the taxpayer’s taxable income from the property (computed without allowance for depletion).” Section 613 (b) (4) provides that, in the case of coal, the percentage depletion rate is 10 percent. In Commissioner v. Southwest Exploration Co., 350 U.S. 308, the Supreme Court stated that the depletion deduction is “based on the theory that the extraction of minerals gradually exhausts the capital investment in the mineral deposit” and that the deduction is “designed to permit a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired.” In Palmer v. Bender, 287 U.S. 551, the Supreme Court, in defining the interests in mineral deposits which would be entitled to a deduction for depletion under the predecessors of sections 611 and 613, stated that “the language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital.” The Court then added that the right to the deduction is not “dependent upon the particular legal form of the taxpayer’s interest in the property to be depleted * * * [and that] it is enough, if * * * he has retained a right to share in the oil produced. If so, he has an economic interest in the oil, in place, which is depleted by production.” (Emphasis added.) In Helvering v. Bankline Oil Co., 303 U.S. 362, the Supreme Court further refined the term “economic interest” by stating that it was “not to be taken as embracing a mere economic advantage derived from production, through a contractual relation to the owner, by one who has no capital investment in the mineral deposit.” Here the petitioners were strip mining coal under a “Lease AGREEMENT and Mining Contract” with Clinchfield Coal Corporation, which owned the" }, { "docid": "17912780", "title": "", "text": "in no case shall the depletion allowance under section 23 (m) be less than it would be if computed without reference to this paragraph. “(B) Definition of gross income from property. “As used in this paragraph the term ‘gross income from the property’ means the gross income from mining. * * * ” Int.Rev.Code of 1939, § 114(b) (4), 26 U.S.C. § 114(b) (4) (1946 ed.). . “Under such provisions [Secs. 23 (m) and 114], the owner of an economic interest in mineral deposits or standing timber is allowed annual depletion deductions. * * * An economic interest is possessed in every case in which the taxpayer has acquired, by investment, any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the severance and sale of the mineral or timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because, through a contractual relation to the owner, he possesses a mere economic advantage derived from production.” Treas.Reg. 111, § 29.23(m)-1. . But see the discussion infra on the cancellation features of the contracts. . “§ 1396.1 Exercise of police power “This act shall be deemed to be an exercise of the police powers of the Commonwealth for the general welfare of the people of the Commonwealth, by providing for the conservation and improvement of areas of land af£eeted in the mining of bituminous coal by the open pit or stripping method, to aid thereby in the protection of birds and wild life, to enhance the value of such land for taxation, to decrease soil erosion, to aid in the prevention of the pollution of rivers and streams, to prevent combustion of un-mined coal, and generally to improve the use and enjoyment of said lands. “§ 1396.2 Short title “This act shall be known and may be cited as the ‘Bituminous Coal Open Pit Mining Conservation Act.’ jjs s|« ij: sj: $ “§ 1396.4 Registration by operator;" }, { "docid": "12487030", "title": "", "text": "and expenses. This partnership was engaged in contract mining for Union Carbide, which dealt with the partners individually rather than as a partnership. For each of the years 1956,1957, and 1958 petitioner maintained an incomplete single-entry set of records. These records failed to record all receipts and all expenses. Petitioner reported as taxable net income in his returns for these respective years, $2,954.51, $5,418.33, and $16,322.31. The examining revenue agent had to make a complete bank deposit and check analysis in order to audit these returns. This examination resulted in respondent’s determination of adjustments in substantial amounts. In addition to the depletion adjustment involved in the instant case, respondent disallowed certain expense deductions, to which petitioner has acceded, in the amounts of $26,275.29, $12,448.82, and $47,690.73 for 1956, 1957, and 1958, respectively. ULTIMATE FINDINGS OF FACT Petitioner did not have an economic interest in the ore in place on the properties he mined under contracts with Union Carbide during 1956 to 1960, inclusive. At least part of the underpayment of income tax by petitioners for each of the years 1956, 1957, and 1958 was due to negligence. OPINION Petitioner seeks a deduction for depletion of the uranium deposits worked by him under the Union Carbide contracts, alleging the applicability of section 611(a). While the Code section itself does not specify who is entitled to the deduction, the regulations make it eminently clear that depletion may be taken only by one who owns an economic interest in the mineral deposit in place: Sec. 1.611-1 [Income Tax Regs.] Allowance of deduction for depletion. (b) Mconomio interest. (1) Annual depletion deductions are allowed only to tbe owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every ease in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. But a person who has no capital investment in" }, { "docid": "6583497", "title": "", "text": "deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. Treas.Reg. § 1.611-1(b)(1) (emphasis added). In short, this regulation sets forth a two-pronged test for determining when a taxpayer is allowed to take a depletion deduction in standing timber. First, the taxpayer must own an “economic interest” in standing timber which the taxpayer has “acquired by investment.” Second, the taxpayer must derive income from the harvesting of the timber from which the taxpayer seeks a return of capital. This test, originally set forth by the U.S. Supreme Court in Palmer v. Bender, 287 U.S. at 557, 53 S.Ct. at 226, has been consistently employed in subsequent depletion cases respecting both oil and mineral deposits and standing timber. Georgia-Pacific Corp. v. United States, 648 F.2d 653, 657-58 (9th Cir.1981) (timber depletion); Food Machinery and Chemical Corp. v. United States, 172 Ct.Cl. 313, 322-23, 348 F.2d 921, 926 (1965) (oil depletion). Defendant contends that ILC’s transactions with IP under the cutting contracts satisfied the two-pronged “economic interest test” of Treas.Reg. § 1.611-1(b)(1), thereby qualifying ILC for depletion deductions under the regulations. First, defendant asserts that ILC acquired an interest in standing timber by capital investment when it executed the cutting contracts and acquired the timber from IP. ILC’s capital investment was made, allegedly, by assuming the obligation under the contracts to pay IP for the timber when harvested. Second, defendant avers that ILC looked to the income derived from exercising its cutting rights granted under the contracts for the subsequent disposition of the timber to third parties under ILC’s log sales agreements and consequent return of its investment. Plaintiff, on the other hand, argues that ILC did not acquire an economic interest in the timber, but merely, and primarily, served superficially to facilitate a “pass through” pricing arrangement and to insulate" }, { "docid": "7258734", "title": "", "text": "to the depletion deduction claimed.” The disallowance of these deductions increased the distributive share of income for the several partners in the years 1956 and 1957. OPINION. The sole issue is whether the petitioners, operating as a partnership, are entitled to deductions for percentage depletion in their coal strip-mining activities in 1956 and 1957. Section 611(a) provides that “In the case of mines, oil and gas wells, other natural deposits, and timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case,” and subsection (b) provides that “In the case of a lease, the deduction under this section shall be equitably apportioned between the lessor and lessee.” Section 613, which deals with percentage depletion, provides that “the allowance for depletion under section 611 shall be the percentage, specified in subsection (b), of the gross income from the property excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property,” and that “Such allowance shall not exceed 50 percent of the taxpayer’s taxable income from the property (computed without allowance for depletion).” Section 613 (b) (4) provides that, in the case of coal, the percentage depletion rate is 10 percent. In Commissioner v. Southwest Exploration Co., 350 U.S. 308, the Supreme Court stated that the depletion deduction is “based on the theory that the extraction of minerals gradually exhausts the capital investment in the mineral deposit” and that the deduction is “designed to permit a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired.” In Palmer v. Bender, 287 U.S. 551, the Supreme Court, in defining the interests in mineral deposits which would be entitled to a deduction for depletion under the predecessors of sections 611 and 613, stated that “the language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the" }, { "docid": "22872376", "title": "", "text": "assets for the part exhausted in production, so that when the minerals are gone, the owner’s capital and his capital assets remain unimpaired. United States v. Cannelton Sewer Pipe Co., 364 U. S. 76, 81 (1960). Percentage depletion first came into the tax structure in 1926 and has been consistently regarded as a matter of legislative grace. We, therefore, must look to the Code provisions and regulations in effect during the years involved to determine whether these contract coal miners acquired a depletable interest in the coal in place. Section 611 (a) provides for “a reasonable allowance for depletion . . . according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary . . . The pertinent regulation states: “(1) Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because through a contractual relation he possess [es] a mere economic or pecuniary advantage derived from production. For example, an agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest. . . .” Treas. Reg. § 1.611-1 (b)(1). Section 611 (b) establishes an equitable apportionment of such allowance between the lessor and the lessee in the case of a lease. However, § 611 (b) must now be read in light of § 631 (c) which provides that an owner who disposes of coal under any form of contract in which he" } ]

[ { "docid": "18328181", "title": "", "text": "venue for plaintiffs action. In a copyright action, the standards for determining whether the court has personal jurisdiction over the defendant and whether venue is proper are identical. Section 1400(a) of Title 28, United States Code, governs venue in copyright actions. That section permits a suit for copyright infringement “in the district in which the defendant or his agent resides or may be found.” Because defendant is a resident of New York, the state of its corporation, venue is proper in Kansas only if defendant is “found” in Kansas. As the court stated in Battle Creek Equipment Co. v. Roberts Manufacturing Co., 460 F.Supp. 18 (W.D.Mich.1978), “[i]t is well settled that a corporation is ‘found’ in any district in which personal jurisdiction might be obtained over it.” Id. at 22. The issue of personal jurisdiction involves two discrete steps of analysis. First, it must be determined whether the defendant’s conduct falls within the scope of one of the provisions of the Kansas long-arm statute. Second, it must be determined whether the exercise of jurisdiction comports with due process requirements. Thermal Insulation Systems, Inc. v. Ark-Seal Corp., 508 F.Supp. 434 (D.Kan.1980). We turn first, then, to an examination of the Kansas long-arm statute. K.S.A. 60-308(b). That statute provides: Any person whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits said person ... to the jurisdiction of the courts ... as to any course of action arising from the doing of any said acts: (1) Transaction of any business within this state; Id. (emphasis added). Defendant argues that its conduct does not fall within this statute. We disagree. Defendant’s position is that it has not transacted any business in Kansas because it operates solely through licensing agreements with wholly independent corporations that are located outside of Kansas. Moreover, defendant states that it has no office, bank account, employee, or property located within Kansas. As plaintiff correctly notes, however, the long-arm statute does not require that the nonresident be present in Kansas. See, e.g.," } ]

[ { "docid": "19890892", "title": "", "text": "that they were visiting the District of Columbia at the time of the alleged infringement. As concluded by Judge Wilkins in Nu Image, this Court cannot see how it could exercise personal jurisdiction over non-District of Columbia residents under the current facts. The Court, therefore, will order plaintiff to show cause why it should assert jurisdiction over the person of each John Doe defendant unless it has a good faith belief that that person is domiciled in the District of Columbia which, as Judge Wilkins found, may be premised on “utilizing geolocation services that are generally available to the public to derive the approximate location of the IP addresses identified for each putative defendant.” Nu Image, 799 F.Supp.2d at 40. Finally, the statutory requirements as to venue under the Copyright Act provide additional and equally insurmountable obstacles to this lawsuit remaining in this Court. Venue is governed exclusively by 28 U.S.C. § 1400, which states the following: “Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.” 28 U.S.C. § 1400(a). Thus, plaintiff will also have to convince me that venue would be proper in this Court. An Order accompanies this Memorandum Opinion. SO ORDERED. . All references to the United States Code or the Code of Federal Regulations are to the electronic versions that appear in Westlaw or Lexis. . Fed.R.Civ.P. 26(f). . \"It is well settled in this jurisdiction [the District of Columbia Circuit] that a claim for copyright infringement sounds in tort.\" Nu Image, Inc. v. Does 1-23,322, 799 F.Supp.2d 34, 38, n. 3 (D.D.C.2011) (citing Stabilisierungsfonds Fur Wein v. Kaiser, 647 F.2d 200, 207 (D.C.Cir.1981))." }, { "docid": "17688482", "title": "", "text": "MEMORANDUM AND ORDER JOYNER, District Judge. By way of the instant motion, Defendants Richard Walker and Walker Oriental Rug Galleries, Inc., seek, to have the complaint dismissed for lack of venue under 28 U.S.C. § 1400(a) or in the alternative for failure to state a claim upon which relief can be granted pursuant to 17 U.S.C. § 411, 17 U.S.C. § 412, and 17 U.S.C. § 301. For the reasons which follow, the action shall be transferred to the Western District of Pennsylvania. Statement of Facts Plaintiff, Mark A. Blackburn t/a Wholesale Rug Outlet (“plaintiff’ or “Wholesale”) is .a Lancaster dealer of oriental rugs. Wholesale created an Internet Web Site, located at the Internet address, www.wholesalerug.com. Wholesale’s Web Site contains graphics illustrating the various types of rugs sold by the plaintiff, accompanied by text that gives a description of each rug. Plaintiff alleges that defendants, Richard Walker and Walker Oriental Rug Galleries, Inc. (“defendants” or “Walker”), as well as FYI Networks, Inc. (“FYI”) copied parts of Wholesale’s Web Site which plaintiff alleges to be protected under the federal copyright law. Plaintiff also alleges unfair trade practices ■ and tortious interference with existing and prospective contractual relations. Richard Walker is the owner of the Pittsburgh-area rug store which allegedly copied the Web Site and FYI Networks is a Pittsburgh-area Internet service provider which “hosted,” or housed Walker’s Web Site. Discussion Defendant argues that the Eastern District of Pennsylvania is an improper venue for the copyright claim. Under 28 U.S.C. § 1400(a) actions for copyright infringement may be brought “in the district in which the defendant or his agent resides or may be found.” General Instrument Corporation of Delaware v. Lake Sylvan Sales, Inc., 1993 WL 496588 (E.D.Pa.1993); see Horne v. Adolph Coors Company, 684 F.2d 255, 260 (3d Cir.1982). A defendant of a copyright claim “may be found” wherever the defendant is amenable to personal jurisdiction. Donner v. Tams-Witmark Music Library, Inc., 480 F.Supp. 1229, 1243-35 (E.D.Pa. 1979). Furthermore, venue in a copyright action is proper in any judicial district in which the defendant would be amenable to personal jurisdiction if" }, { "docid": "16960593", "title": "", "text": "D.C.Code allows for service of process on foreign corporations doing business in the District. See § 13-334(“a) In an action against a foreign corporation doing business in the District, process may be served on the agent of the corporation or person conducting its business, or, when he is absent and can not be found, by leaving a copy at the principal place of business in the District, or, where there is no such place of business, by leaving a copy at the place of business or residence of the agent in the District, and that service is effectual to bring the corporation before the court.”). Plaintiff argues that pursuant to D.C. law, this statute also provides- an independent basis for personal jurisdiction. However, even if this is an accurate statement of D.C. law, it is uncontested that service of process was not effectuated within the District of Columbia. For this reason, § 13-334 does not apply and this Court need not reach the issue of whether this section alone can support personal jurisdiction. B. Federal claims Plaintiffs federal copyright claims in Counts IV and V are governed by 28 U.S.C. § 1400(a). That venue statute states: Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found. 28 U.S.C. § 1400(a). This provision is subject to the definition of residence for corporations in 28 U.S.C. § 1391(c) discussed above. See § 1391(c)(“a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced”). Section 1391(c) explicitly applies “[f]or purposes of venue under this chapter.” Id. Thus, once again, whether this Court has venue for these claims turns on whether this Court can assert personal jurisdiction over this defendant. For the reasons given above, this Court does have personal jurisdiction by virtue of the alleged conspiracy. Therefore because Convera is subject to the personal" }, { "docid": "3070776", "title": "", "text": "the state of Georgia is irrelevant. See The Pilsbury Company v. Milky Way Productions, Incorporated, et al., 204 U.S.P.Q. 106, 109 (N.D.Ga.1978); Curtis Publishing Company v. Birdsong, 360 F.2d 344 (5th Cir.1966) (Rives, J. concurring specially); Original Appalacian Artworks, supra, at 219, quoting, Bangor Punta Operations, Inc. v. Universal Marine Co., 543 F.2d 1107 (5th Cir.1976). By having licensed their song to a distributor, knowing that the distributor distributed or licensed the song nationally, including within the state of Georgia, Defendants have established sufficient minimum contacts with Georgia so as not to violate due process guarantees. Testa v. Janssen, 482 F.Supp. 1195, 1199 (W.D.Pa.1980); Edy Clover Productions, Inc. v. National Broadcasting Company, Inc., 572 F.2d 119 (3rd Cir.1978) (producer of television program, who knew that the program would be transmitted interstate, could have anticipated that copyright infringement might have resulted at places remote from the place of production). The court also concludes that venue is proper in the Northern District of Georgia. As Defendants point out, 28 U.S.C. § 1400(a) is the proper venue statute, as Plaintiff alleges a cause of action under the federal copyright laws and jurisdiction is found under 28 U.S.C. § 1838. See also Time, Inc. v. Manning, 366 F.2d 690, 696 (5th Cir.1966). § 1400(a) provides that: Civil actions, suits or proceedings arising under any Act of Congress relating to copyrights may be instituted in the district in which the defendant or his agent resides or may be found. It is well-settled that venue will properly lie in a copyright action wherever personal jurisdiction may be obtained under the state’s long-arm statute. See Edy Clover Productions, Inc., supra; Droke House Publishers, Inc. v. Aladdin Distributing Corp., 352 F.Supp. 1062, 1064 (N.D.Ga.1972), citing Time, Inc., supra. As the court noted in Testa v. Janssen, supra, at 1197: As a practical matter, the test is identical for determining the question of venue and jurisdiction over a non-resident corporation ... Also, the reference in § 1400a to “may be found” does not impose a greater finding of presence than is required to obtain jurisdiction over a corporate defendant." }, { "docid": "14996846", "title": "", "text": "only where there is “ ‘some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958)). The materials in the file demonstrate that Dumond advertised his business in at least one magazine of national circulation, received a small number of inquiries from prospective Vermont customers, and actually obtained one Vermont customer and delivered his training manual to that customer. These contacts with Vermont are sufficient to support personal jurisdiction. See Sollinger v. Nasco Intern’l, Inc., 655 F.Supp. at 1388 (jurisdiction asserted over foreign defendant who mailed its catalogs into Vermont to solicit sales and entered into a transaction with a Vermont resident, even though the transaction may not have been completed). As to the question of venue, 28 U.S.C. § 1400(a) directs that copyright infringement actions “be instituted in the district in which the defendant or his agent resides or may be found.” Greg Dumond lives and operates his business in California, and, according to his affidavit, has never set foot in Vermont. Although a corporation defendant “shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction” for purposes of venue, under 28 U.S.C. § 1391(c), Dumond’s business is not a corporation. The materials before the court show that Dumond and his sole proprietorship do not reside and may not be found in Vermont under the venue provisions. The District of Vermont is accordingly the wrong place to sue these defendants for copyright infringement. 28 U.S.C. § 1406(a) provides: “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” Because the remaining state law claim may" }, { "docid": "17813442", "title": "", "text": "otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b). The copyright venue statute, 28 U.S.C. § 1400(a), is more restrictive. It provides that “[ejivil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.” 28 U.S.C. § 1400(a). However, Plaintiff cites to no authority that supports the proposition that § 1391(b), and not § 1400(a), is the controlling venue statute in copyright cases. In fact, the weight of authority strongly indicates that § 1391(b) is inapplicable to this case. Indeed, the Supreme Court held long ago that “[t]he venue of suits for infringement of copyright is not determined by the general provision governing suits in the federal district courts,” but rather by the specific copyright venue provision passed by Congress. Lumiere v. Mae Edna Wilder, Inc., 261 U.S. 174, 176, 43 S.Ct. 312, 67 L.Ed. 596 (1923) (discussing the general venue provision in Section 51 of the Judicial Code (Act March 3,1911, c. 231, 36 Stat. 1101) and the venue provision found in the Copyright Act of 1909) . See also Time, Inc. v. Manning, 366 F.2d 690, 696 (5th Cir.1966) (noting that if the plaintiffs cause of action was a claim under federal copyright law, “the suit may be brought only in the district where the defendant ‘resides or may be found’ ” (quoting 28 U.S.C. § 1400(a))); Goldberg v. Cameron, 482 F.Supp.2d 1136, 1143 (N.D.Cal.2007) (section 1400(a) governs venue for copyright infringement suits (citing Lumiere)). Furthermore, the Supreme Court has" }, { "docid": "2637990", "title": "", "text": "be proper. Defendant argues that Plaintiffs’ action should be dismissed under 28 U.S.C. §§ 1391(b) and 1400(a). In order to survive Defendant’s motion to dismiss for improper venue, Plaintiffs only need make a prima facie showing that venue in this district is proper. Mitrano v. Hawes, 377 F.3d 402, 405 (4th Cir.2004). Venue is proper under 1391(b) where “a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.” 28 U.S.C. § 1391(b). Plaintiffs have made a prima facie showing that a sub- stantial part of the events giving rise to the claim occurred in Maryland as they contracted from Maryland, and the alleged fraudulent access took place on servers located in Maryland. Additionally, Plaintiffs’ servers and associated copyrighted material, which constitute property that is the subject of the action, are located in Maryland. Venue is proper for claims brought under the Copyright Act in any district where the defendant “may be found.” 28 U.S.C. 1400(a). The term “may be found” in 1400(a) is interpreted to mean any district which may assert personal jurisdiction over a defendant. Palmer v. Braun, 376 F.3d 1254, 1259 (11th Cir.2004); see also Milwaukee Concrete Studios, Ltd. v. Fjeld Mfg. Co., 8 F.3d 441, 445-46 (7th Cir.1993). As discussed above, the exercise of personal jurisdiction by a Maryland court is proper over Defendant. Therefore, under both 1391(b) and 1400(a), venue is proper in this court. 4. Change of Venue Defendant also argues for a transfer of venue pursuant to 28 U.S.C. 1404(a). First, deference is generally given to a plaintiffs choice of forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (generally, there is “a strong presumption in favor of the plaintiffs choice of forum”). Second, the relative ease of access to sources of proof weighs in Plaintiffs’ favor. While Defendant asserts in her affidavit that litigation in Maryland would cause her severe financial hardship, she has not identified any witnesses or proof, other than herself and the" }, { "docid": "17688484", "title": "", "text": "the district were a separate state. Columbia Pictures Television v. Krypton Broadcasting, 106 F.3d 284, 289 (9th Cir.1997); Milwaukee Concrete Studios v. Fjeld Manufacturing Co., 8 F.3d 441, 445-47 (7th Cir.1993). In order to determine where the alleged infringer “may be found” for purposes of establishing venue, the district court must consider the alleged infringer’s contacts with the particular federal district in the state. Milwaukee Concrete Studios, 8 F.3d at 445-47. It thus follows that the alleged infringer’s amenability to personal jurisdiction must relate to the judicial district in which the claim was commenced in order for venue to be proper under 28 U.S.C. § 1400(a). Id. Plaintiff contends that venue is proper because the defendant has sufficient contacts with the Eastern District of Pennsylvania to establish that the defendant is amenable to personal jurisdiction and, thus, “may be found” in the district. Specifically, the plaintiff argues that the defendant allegedly continues to: (1) cause harm and tortious injury to the plaintiff through its continued infringement of the plaintiffs copyright in the district and (2) solicit business in the district through the use of an interactive web site. Under Milwaukee Concrete Studios, the court must now consider the type of contacts defendants have with the district as alleged by the plaintiff. However, this task becomes more difficult because the Internet is a fairly recent phenomenon that is increasingly transforming the way business is conducted in today’s global society. Zippo Mfg. Co. v. Zippo Dot Com., Inc., 952 F.Supp. 1119, 1123 (W.D.Pa.1997). It is now possible to complete business transactions throughout the world completely from a desktop via the Internet. Id. In analyzing a defendant’s contacts through the use of the Internet, the probability that personal jurisdiction may be constitutionally exercised is “directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.” Id. at 1124. Three types of contacts have been identified in order to determine the existence of personal jurisdiction. Weber v. Jolly Hotels, 977 F.Supp. 327, 333 (D.N.J.1997). The first type of contact is when the defendant clearly does business over the" }, { "docid": "19783155", "title": "", "text": "... knowing Brayton Purcell is a resident of this District and would suffer any injuries ... in this District.” Brayton Purcell further alleged that Re-cordon “made commercial use of Brayton Purcell’s Website and of the copyrighted material ... [and] willfully, deliberately and knowingly used Plaintiffs copyrighted work for the purpose of promoting its business and attracting new business in the field of elder abuse law, in competition with [Brayton Purcell].” Recordon filed a motion seeking, alternatively, dismissal pursuant to Fed. R.Civ.P. 12(b)(2) for lack of personal jurisdiction, dismissal pursuant to Fed. R.Civ.P. 12(b)(3) for improper venue, or change of venue under 28 U.S.C. § 1404(a). The district court denied Re-cordon’s motion. After a settlement conference, the parties agreed to submit to binding arbitration. The arbitrator found for Brayton Purcell, and the district court entered judgment in its favor. Recordon has appealed only the district court’s denial of its motion to dismiss for improper venue, not the entry of judgment on the arbitration award. II. Standard of Review A district court’s rulings on personal jurisdiction and venue are reviewed de novo. See Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir.2006) (personal jurisdiction); Immigrant Assistance Project of the L.A. County Fed’n of Labor v. INS, 306 F.3d 842, 868 (9th Cir.2002) (venue). Although the burden is on the plaintiff to demonstrate that the court has jurisdiction over the defendant, in the absence of an evidentiary hearing, the plaintiff need only make “a prima facie showing of jurisdictional facts to withstand the motion to dismiss.” Pebble Beach, 453 F.3d at 1154 (internal quotation marks omitted). Additionally, “uncontroverted allegations in [plaintiffs] complaint must be taken as true, and conflicts between the facts contained in the parties’ affidavits must be resolved in [plaintiffs] favor.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir.2002); see also Pebble Beach, 453 F.3d at 1154 (“[F]or the purpose of this[prima facie] demonstration, the court resolves all disputed facts in favor of the plaintiff.”). III. Discussion In copyright infringement actions, venue is proper “in the district in which the defendant or his agent" }, { "docid": "3332991", "title": "", "text": "Rule 12 motion waives the objection); Fed.R.Civ.P. 7(b)(1) (“[a]n application to the court for an order shall be by motion which ... shall state with particularity the grounds therefor ...”); Davis v. Hill Eng’g, Inc., 549 F.2d 314, 324-25 (5th Cir.1977) (holding that defendant waived his objection to service of process by not stating it with particularity in his motion challenging venue under the Jones Act, 46 U.S.C. § 688). Because Braun’s motion clearly raised only venue, and not personal jurisdiction, we conclude that he waived any objection to the court’s jurisdiction over his person. C. Venue Plaintiffs advanced several theories of recovery in their complaint, invoking the district court’s federal question and diversity jurisdiction, under 28 U.S.C. §§ 1331 and 1332, as well as the court’s jurisdiction over copyright claims under 28 U.S.C. § 1338. They pleaded facts in support of the district court’s venue over all the actions. In his motion challenging venue, Braun contended only that the Middle District of Florida was not the proper venue to decide the copyright claim, as the venue requirements of 28 U.S.C. § 1400(a) were not met. On appeal, he argues that the facts of the case were facially insufficient to support a § 1400(a) venue. A civil suit to enforce the Copyright Act may be brought in any district “in which the defendant or his agent resides or may be found.” 28 U.S.C. § 1400(a). A defendant “may be found” in a district in which he could be served with process; that is, in a district which may assert personal jurisdiction over the defen dant. Milwaukee Concrete Studios v. Fjeld Mfg. Co., 8 F.3d 441, 445-46 (7th Cir.1993) (holding that venue was proper in a district to which a corporation and an individual had imported a copyright-infringing sculpture, as that district would have personal jurisdiction over them based on the state’s long-arm statute); Payne v. Kristofferson, 631 F.Supp. 39, 44 (N.D.Ga. 1985); Foxworthy v. Custom Tees, Inc., 879 F.Supp. 1200, 1207 (N.D.Ga.1995). Here, Braun appeared before the district court without contesting the court’s jurisdiction over his person or his amenability" }, { "docid": "9428834", "title": "", "text": "in a case in which multiple claims are joined, venue must be proper for each claim. 15 C. Wright & A. Miller, Federal Practice and Procedure § 3808 (1986). The RICO venue provision, 18 U.S.C. § 1965(a), provides: (a) Any civil action or proceeding under this chapter [18 U.S.C. §§ 1961 et seq.] against any person may be instituted in the district court of the United States for any district in which such person resides, is found, has an agent, or transacts his affairs. Defendant Caughey resides in New Jersey. There are no allegations which suggest that he “is found” or that he “transacts his affairs” in this district. The term “is found” has been construed to mean presence and continuous local activity. See P & D Associates v. Karavangelos, No. 88-6639 (E.D.Pa. March 7, 1989) (1989 Westlaw 21294) (citing Wichita Federal Savings & Loan v. Landmark Group, Inc., 674 F.Supp. 321, 328 (D.Kan.1987)). A person transacts his affairs within a particular district when he regularly conducts business of a substantial and continuous nature within that district. Hodgdon v. Needham-Skyles Oil Co., 556 F.Supp. 75, 78 (D.D.C.1982); King v. Vesco, 342 F.Supp. 120, 122 (N.D.Cal.1972); Dody v. Brown, 659 F.Supp. 541, 545 (W.D.Mo.1987). Additionally, the RICO venue provision requires a showing that the individual defendant transacted his affairs on his own behalf and not merely on behalf of a corporation. Rolls Royce Motors, Inc. v. Charles Schmitt and Co., 657 F.Supp. 1040 (S.D.N.Y.1987); Payne v. Marketing Showcase, Inc., 602 F.Supp. 656, 659-660 (N.D.Ill.1985); Bulk Oil (USA), Inc. v. Sun Oil Trading Co., 584 F.Supp. 36, 39-40 (S.D.N.Y.1983). The RICO venue provision is supplemental to the general federal venue provision found in 28 U.S.C. § 1391. Miller Brewing Co. v. Landau, 616 F.Supp. 1285, 1291 (D.C.Wis.1985); Levine v. Braxton, No. 83-3901, slip op. (E.D.Pa., December 20, 1983). Section 1391(b) provides that: (b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law. Since the" }, { "docid": "13784833", "title": "", "text": "only removed from, and [sic] shunned, all forms of electronic media and, most certainly, any media and actual exposure to the Terminator movies” (1st Am.ComplV 14). II. ANALYSIS A. Cameron and Hurd’s Motions to Dismiss for Improper Venue or Transfer 1. Venue The venue of suits for infringement of copyright is not determined by the general provision governing suits in the federal district courts, rather by the venue provision of the Copyright Act. 28 U.S.C. § 1400(a); Lumiere v. Mae Edna Wilder, Inc., 261 U.S. 174, 176, 43 S.Ct. 312, 67 L.Ed. 596 (1923). 28 U.S.C. § 1400(a) provides that “[c]ivil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.” 28 U.S.C. § 1400(a). The Ninth Circuit has interpreted the statute to mean that venue “is proper in any judicial district in which the defendant would be amenable to personal jurisdiction if the district were a separate state.” Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., 106 F.3d 284, 288 (9th Cir.1997), overruled on other grounds by Feltner v. Columbia Pictures Television, 523 U.S. 340, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998); see also VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1583 (Fed.Cir.1990) (venue is proper in any district in which there is personal jurisdiction over the defendant). “The court uses basically the same procedure to decide a motion to dismiss for improper venue as it does for deciding a motion to dismiss for lack of personal jurisdiction.” Hudye Soil Services, Inc. v. Tyler, 46 F.Supp.2d 1157, 1161 (D.Kan.1999). Where, as here, the motion to dismiss is based on written materials rather than an evidentiary hearing, Goldberg need only make a prima facie showing to demonstrate that the Northern District of California has personal jurisdiction over Cameron and Hurd. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004). a. General Jurisdiction The Ninth Circuit sets forth the test for general jurisdiction as" }, { "docid": "1755404", "title": "", "text": "jurisdiction alleged in plaintiffs’ complaint is 28 U.S.C. § 1338(a) which provides: “(a) the district court shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, copyright and trademarks. Such jurisdiction shall be exclusive of the courts of the States in patent and copyright cases.” The federal statutory copyright provision, 28 U.S.C. § 1400(a) states: “(a) Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights may be instituted in the district in which the defendant or his agent resides or may be found.” Defendant Longstreet resides in California and Defendant McKay in New York. Venue in the Northern District of Illinois is proper only if the defendants, or one of them, is “found” here. The parties have agreed that if the defendant McKay, the agent of Longstreet, is “found” ini the Northern District, so too will Mr. Longstreet be “found” here. As a practical matter, the test for determining whether a non-resident corporation or its agent is “found” within a district, pursuant to 28 U.S.C. § 1400(a), is the same as that for determining whether a corporation is amenable to suit in a jurisdiction other than that in which it is incorporated. See: Backer v. Gonder Ceramic Arts, 90 F. Supp. 737 (S.D.N.Y., 1950); Geo-Physical Maps v. Toycraft Corporation, 162 F.Supp. 141 (S.D.N.Y., 1958); Gauvreau v. Warner Bros. Pictures, Inc., 178 F.Supp. 510 (S.D.N.Y., 1958). In so far as the defendant McKay is concerned, the questions of personal jurisdiction and of venue are one and the same. See Geo-Physical Maps v. Toy-craft Corporation, supra. In order for a. non-resident corporate defendant to be amenable to suit in this district under the standards enunciated in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), it must affirmatively appear that the defendant’s activities in the Northern District of Illinois were so systematic and continuous as to make it present in this jurisdiction for the purposes of service of process. It has also been recognized that the copyright statute does not require a" }, { "docid": "16960594", "title": "", "text": "claims Plaintiffs federal copyright claims in Counts IV and V are governed by 28 U.S.C. § 1400(a). That venue statute states: Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found. 28 U.S.C. § 1400(a). This provision is subject to the definition of residence for corporations in 28 U.S.C. § 1391(c) discussed above. See § 1391(c)(“a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced”). Section 1391(c) explicitly applies “[f]or purposes of venue under this chapter.” Id. Thus, once again, whether this Court has venue for these claims turns on whether this Court can assert personal jurisdiction over this defendant. For the reasons given above, this Court does have personal jurisdiction by virtue of the alleged conspiracy. Therefore because Convera is subject to the personal jurisdiction of this Court at the time this action was commenced, Convera is deemed to reside in the District of Columbia pursuant to § 1391(c). Because Convera can be said to reside in the District, venue is proper pursuant to § 1400(a). C. Transfer Justification Transfer is only appropriate if venue exists in the District to which the case is to be transferred. Convera does not devote much time to the justification for a transfer of this case to the Eastern District of Virginia in particular. Convera simply argues that venue is appropriate there, and certain factors in the “interests of justice” test would support such a transfer. Plaintiff correctly responds that two of the three factors stated by Convera are irrelevant: first, that DSMCi has Virginia-based counsel, and second, that the Fourth Circuit is familiar with cases involving the internet. The other factor cited by Conv-era, that Virginia law will apply to this case, remains to be determined. It is unclear to this Court why the interests of justice will be served by a" }, { "docid": "17688483", "title": "", "text": "under the federal copyright law. Plaintiff also alleges unfair trade practices ■ and tortious interference with existing and prospective contractual relations. Richard Walker is the owner of the Pittsburgh-area rug store which allegedly copied the Web Site and FYI Networks is a Pittsburgh-area Internet service provider which “hosted,” or housed Walker’s Web Site. Discussion Defendant argues that the Eastern District of Pennsylvania is an improper venue for the copyright claim. Under 28 U.S.C. § 1400(a) actions for copyright infringement may be brought “in the district in which the defendant or his agent resides or may be found.” General Instrument Corporation of Delaware v. Lake Sylvan Sales, Inc., 1993 WL 496588 (E.D.Pa.1993); see Horne v. Adolph Coors Company, 684 F.2d 255, 260 (3d Cir.1982). A defendant of a copyright claim “may be found” wherever the defendant is amenable to personal jurisdiction. Donner v. Tams-Witmark Music Library, Inc., 480 F.Supp. 1229, 1243-35 (E.D.Pa. 1979). Furthermore, venue in a copyright action is proper in any judicial district in which the defendant would be amenable to personal jurisdiction if the district were a separate state. Columbia Pictures Television v. Krypton Broadcasting, 106 F.3d 284, 289 (9th Cir.1997); Milwaukee Concrete Studios v. Fjeld Manufacturing Co., 8 F.3d 441, 445-47 (7th Cir.1993). In order to determine where the alleged infringer “may be found” for purposes of establishing venue, the district court must consider the alleged infringer’s contacts with the particular federal district in the state. Milwaukee Concrete Studios, 8 F.3d at 445-47. It thus follows that the alleged infringer’s amenability to personal jurisdiction must relate to the judicial district in which the claim was commenced in order for venue to be proper under 28 U.S.C. § 1400(a). Id. Plaintiff contends that venue is proper because the defendant has sufficient contacts with the Eastern District of Pennsylvania to establish that the defendant is amenable to personal jurisdiction and, thus, “may be found” in the district. Specifically, the plaintiff argues that the defendant allegedly continues to: (1) cause harm and tortious injury to the plaintiff through its continued infringement of the plaintiffs copyright in the district and (2)" }, { "docid": "13784834", "title": "", "text": "a separate state.” Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., 106 F.3d 284, 288 (9th Cir.1997), overruled on other grounds by Feltner v. Columbia Pictures Television, 523 U.S. 340, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998); see also VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1583 (Fed.Cir.1990) (venue is proper in any district in which there is personal jurisdiction over the defendant). “The court uses basically the same procedure to decide a motion to dismiss for improper venue as it does for deciding a motion to dismiss for lack of personal jurisdiction.” Hudye Soil Services, Inc. v. Tyler, 46 F.Supp.2d 1157, 1161 (D.Kan.1999). Where, as here, the motion to dismiss is based on written materials rather than an evidentiary hearing, Goldberg need only make a prima facie showing to demonstrate that the Northern District of California has personal jurisdiction over Cameron and Hurd. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004). a. General Jurisdiction The Ninth Circuit sets forth the test for general jurisdiction as follows: For general jurisdiction to exist over a nonresident defendant ..., the defendant must engage in “continuous and systematic general business contacts” that “approximate physical presence” in the forum state. This is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world. Id. at 801 (citing International Shoe Co. v. Washington, 326 U.S. 310, 318, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). General jurisdiction does not exist absent a showing of pervasive contacts. See, e.g., Gator.com. Corp. v. L.L. Bean, Inc., 341 F.3d 1072, 1075-77 (9th Cir.2003) (general jurisdiction requires an “approximation of physical presence”); Amoco Egypt Oil Co. v. Leonis Navigation Co., 1 F.3d 848, 851 n. 3 (9th Cir.1993) (noting courts have “regularly declined to find general jurisdiction even where the contacts were quite extensive”). “Factors to be taken into consideration are whether the defendant makes sales, solicits or engages in business in the state, serves the" }, { "docid": "3332992", "title": "", "text": "the venue requirements of 28 U.S.C. § 1400(a) were not met. On appeal, he argues that the facts of the case were facially insufficient to support a § 1400(a) venue. A civil suit to enforce the Copyright Act may be brought in any district “in which the defendant or his agent resides or may be found.” 28 U.S.C. § 1400(a). A defendant “may be found” in a district in which he could be served with process; that is, in a district which may assert personal jurisdiction over the defen dant. Milwaukee Concrete Studios v. Fjeld Mfg. Co., 8 F.3d 441, 445-46 (7th Cir.1993) (holding that venue was proper in a district to which a corporation and an individual had imported a copyright-infringing sculpture, as that district would have personal jurisdiction over them based on the state’s long-arm statute); Payne v. Kristofferson, 631 F.Supp. 39, 44 (N.D.Ga. 1985); Foxworthy v. Custom Tees, Inc., 879 F.Supp. 1200, 1207 (N.D.Ga.1995). Here, Braun appeared before the district court without contesting the court’s jurisdiction over his person or his amenability to process in the district. By his consent to personal jurisdiction, Braun was “found” in the Middle District of Florida for purposes of § 1400(a) venue. Thus, the district court did not abuse its discretion in denying his venue motion. V. CONCLUSION The district court properly had subject matter jurisdiction over the copyright claim brought by Palmer and Star’s Edge. Braun consented to the district court’s jurisdiction over his person; thus, the Middle District of Florida was a proper venue for the copyright action. AFFIRMED. . For a more detailed background of this case, see Palmer v. Braun, 287 F.3d 1325 (11th Cir.2002), where we affirmed the district court’s denial of a preliminary injunction in this case. . Braun also attacks the district court's judgment on the merits, contending that (1) the Plaintiffs failed to prove that he infringed their copyright, and (2) that the Plaintiffs’ copyright claim should be defeated by the affirmative defense of misrepresentation to the copyright office. These contentions have no merit. The district court committed no error in concluding that" }, { "docid": "17813443", "title": "", "text": "of authority strongly indicates that § 1391(b) is inapplicable to this case. Indeed, the Supreme Court held long ago that “[t]he venue of suits for infringement of copyright is not determined by the general provision governing suits in the federal district courts,” but rather by the specific copyright venue provision passed by Congress. Lumiere v. Mae Edna Wilder, Inc., 261 U.S. 174, 176, 43 S.Ct. 312, 67 L.Ed. 596 (1923) (discussing the general venue provision in Section 51 of the Judicial Code (Act March 3,1911, c. 231, 36 Stat. 1101) and the venue provision found in the Copyright Act of 1909) . See also Time, Inc. v. Manning, 366 F.2d 690, 696 (5th Cir.1966) (noting that if the plaintiffs cause of action was a claim under federal copyright law, “the suit may be brought only in the district where the defendant ‘resides or may be found’ ” (quoting 28 U.S.C. § 1400(a))); Goldberg v. Cameron, 482 F.Supp.2d 1136, 1143 (N.D.Cal.2007) (section 1400(a) governs venue for copyright infringement suits (citing Lumiere)). Furthermore, the Supreme Court has also held that 28 U.S.C. § 1400(b), a related venue statute for patent infringement actions, “is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391(c).” Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 229, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957). Accordingly, Plaintiffs reliance on § 1391(b) appears to be unfounded and venue is this case is only proper in a district in which “the defendant or his agent resides or may be found.” 28 U.S.C. § 1400(a). Here, Plaintiff conceded at the status conference that the vast majority of the 23,322 putative defendants do not reside in the District of Columbia. Furthermore, while counsel for Plaintiff has posited theories about how some of the putative defendants residing outside of this district may have committed copyright infringement inside of this district, no evidence has been presented in this regard. As Plaintiff acknowledges in its Motion for Leave To Take Discovery Prior to Rule 26(f) Conference" }, { "docid": "3070777", "title": "", "text": "as Plaintiff alleges a cause of action under the federal copyright laws and jurisdiction is found under 28 U.S.C. § 1838. See also Time, Inc. v. Manning, 366 F.2d 690, 696 (5th Cir.1966). § 1400(a) provides that: Civil actions, suits or proceedings arising under any Act of Congress relating to copyrights may be instituted in the district in which the defendant or his agent resides or may be found. It is well-settled that venue will properly lie in a copyright action wherever personal jurisdiction may be obtained under the state’s long-arm statute. See Edy Clover Productions, Inc., supra; Droke House Publishers, Inc. v. Aladdin Distributing Corp., 352 F.Supp. 1062, 1064 (N.D.Ga.1972), citing Time, Inc., supra. As the court noted in Testa v. Janssen, supra, at 1197: As a practical matter, the test is identical for determining the question of venue and jurisdiction over a non-resident corporation ... Also, the reference in § 1400a to “may be found” does not impose a greater finding of presence than is required to obtain jurisdiction over a corporate defendant. Therefore, if a non-resident corporation is amenable to process under the forum’s long-arm statute, in personam jurisdiction and venue are extent. See also Geo-Physical Maps, Inc. v. Toycraft Corporation, 162 F.Supp. 141, 146-47 (S.D.N.Y.1958). The court has already found that Defendants constitutionally may be served with process and are amenable to suit in this district under Georgia’s long-arm statute. Therefore, Defendants may also be “found” in Georgia within the meaning of § 1400(a). Furthermore, once proper venue is obtained over Plaintiff’s federal claims, her other claims may be adjudicated here as well. Micromanipulator Co., Inc. v. Bough, 558 F.Supp. 36, 37 (D.Nev.1982); Dolly Toy Co. v. Bancroft-Rellim, 97 F.Supp. 531, 536 (S.D.N.Y.1951). Since the court concludes that venue is proper under § 1400(a), it need not address the question of venue under the stricter requirements of § 1391(b). Time, Inc., supra, at 696-97. Finally, Defendants have requested the court for a discretionary transfer of this action to the United States District Court for the Middle District of Tennessee under 28 U.S.C. § 1404(a). That section" }, { "docid": "19783156", "title": "", "text": "venue are reviewed de novo. See Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir.2006) (personal jurisdiction); Immigrant Assistance Project of the L.A. County Fed’n of Labor v. INS, 306 F.3d 842, 868 (9th Cir.2002) (venue). Although the burden is on the plaintiff to demonstrate that the court has jurisdiction over the defendant, in the absence of an evidentiary hearing, the plaintiff need only make “a prima facie showing of jurisdictional facts to withstand the motion to dismiss.” Pebble Beach, 453 F.3d at 1154 (internal quotation marks omitted). Additionally, “uncontroverted allegations in [plaintiffs] complaint must be taken as true, and conflicts between the facts contained in the parties’ affidavits must be resolved in [plaintiffs] favor.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir.2002); see also Pebble Beach, 453 F.3d at 1154 (“[F]or the purpose of this[prima facie] demonstration, the court resolves all disputed facts in favor of the plaintiff.”). III. Discussion In copyright infringement actions, venue is proper “in the district in which the defendant or his agent resides or may be found.” 28 U.S.C. § 1400(a). The Ninth Circuit interprets this statutory provision to allow venue “in any judicial district in which the defendant would be amenable to personal jurisdiction if the district were a separate state.” Columbia Pictures, 106 F.3d at 289. This Court employs a three-prong test to determine whether a party has sufficient minimum contacts to be susceptible to specific personal jurisdiction: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir.2004) (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir.1987)). Only the" } ]

[ { "docid": "22982298", "title": "", "text": "at 373, 96 S.Ct. at 2689. The Court, however, through Justice Brennan’s plurality and Justice Stewart’s concurring opinions, also created an exception to this general rule. Under this exception, public employees in certain positions can be terminated on the basis of political affiliation without violating the First Amendment Justice Brennan wrote that “[l]imiting patronage dismissals to policymaking positions is sufficient to achieve” the valid governmental objective of preventing holdover employees from undermining the ability of a new administration to implement its policies. Id. at 367, 96 S.Ct. at 2686-87. He reasoned that “[n]onpolicymaking individuals usually have only limited responsibility and are therefore not in a position to thwart the goals of the in-party.” Id. Justice Stewart’s concurrence phrased the exception slightly differently: The single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot. Id. at 375, 96 S.Ct. at 2690 (Stewart, J., concurring). The Court reexamined the scope of First Amendment protection against politically motivated discharge in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The Court, now speaking through a majority, reaffirmed that a discharge based on political affiliation presumptively violates the First Amendment, but that “party affiliation may be an acceptable requirement for some types of government employment.” Id. at 517, 100 S.Ct. at 1294. The plaintiff bears the initial burden of proving that he or she was discharged because of his or her political affiliation. See id. The defendant then bears the burden of showing that the plaintiffs job falls within the exception for policy-making positions. See id. at 518,100 S.Ct. at 1294-95. The Branti Court rephrased this exception, stating that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. Under this reformulated exception," } ]

[ { "docid": "5805413", "title": "", "text": "U.S. 347, 359, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion). The Court observed that political patronage inhibited not only freedom of belief and association, but also the “free functioning of the electoral process”: Conditioning public employment on partisan support prevents support of competing political interests. Existing employees are deterred from such support, as well as the multitude seeking jobs. As government employment, state or federal, becomes more pervasive, the greater the dependence on it becomes, and therefore the greater the power to starve political opposition by commanding partisan support, financial and otherwise. Patronage thus tips the electoral process in favor of the incumbent party, and where the practice’s scope is substantial relative to the size of the electorate, the impact on the process can be significant. Our concern with the impact of patronage on political believe [sic] and association does not occur in the abstract, for political belief and association constitute the core of those activities protected by the First Amendment. Id., 427 U.S. at 354. Despite its ban on across-the-board patronage dismissals, Elrod recognized an exception for employees occupying policymaking decisions. Id. at 366. The policymaking exception established in Elrod was later refined by the Court in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Surveying Supreme Court precedent in the area of pátronage dismissals, the Eighth Circuit Court of Appeals observed that “in Branti, the Court modified the Elrod standard by stating that the ultimate inquiry is not whether the employee is a policymaker.” Billingsley v. St. Louis County, 70 F.3d 61, 63 (1995) (citing Branti, 445 U.S. at 518). Rather the pertinent inquiry, as refined in Branti, is whether “party affiliation is essential for effective performance of the particular job.” Id. (citing Branti 445 U.S. at 518). The Branti Court summarized the question as follows: [T]he ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropri até requirement for the effective performance of the public office involved. Branti 445 U.S." }, { "docid": "16486647", "title": "", "text": "and Valentín. More than twenty years ago, a plurality of the Supreme Court held that governmental employers may not discharge an employee because of her political affiliation without showing a governmental interest sufficiently vital to outweigh the employee’s First Amendment right to association. Elrod v. Burns, 427 U.S. 347, 355-56, 362, 96 S.Ct. 2673, 2676-77, 2680-81, 49 L.Ed.2d 547 (1976). The plurality found that the government’s interest in effective implementation of its policies can be achieved “by limiting patronage dismissals to policymaking positions.” Id. at 372, 96 S.Ct. at 2689. Justice Stewart’s concurrence gave the Court a majority for the proposition that nonpolicy-making, nonconfidential employees should not be discharged on the basis of their political beliefs. Id. at 374-75, 96 S.Ct. at 2690-91 (Stewart, J., concurring in the judgment). The Court next attempted to define the contours of the prohibition on political discharge in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Instead of applying Elrod’s policymaking inquiry, the Branti Court relied upon a finding that political affiliation is not an appropriate requirement for the effective performance of the position of assistant public defender. Id. at 518-19, 100 S.Ct. at 1294-95. The Branti Court again, however, imposed the burden on the governmental body seeking dismissal: “[Ujnless the government can demonstrate ‘an overriding interest’ ‘of vital importance’ requiring that a person’s private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment.” Id. at 515-16, 100 S.Ct. at 1293 (citations omitted). Of fundamental importance is the idea that “conditioning continued public employment on an employee’s having obtained support from a particular political party violates the First Amendment because of ‘the coercion of belief that necessarily flows from the knowledge that one must have a sponsor in the dominant party in order to retain one’s job.’ ” Rutan v. Republican Party of Illinois, 497 U.S. 62, 71, 110 S.Ct. 2729, 2735, 111 L.Ed.2d 52 (1990) (quoting Branti, 445 U.S. at 516, 100 S.Ct. at 1294). More recently, in Rutan v. Republican Party of Illinois, the" }, { "docid": "5820597", "title": "", "text": "employment. 3. What process was Plaintiff entitled to before he could be terminated? Plaintiff was not given a hearing prior to his dismissal as required by Ordinance 19-1984. Therefore, he was denied his due process rights under the fourteenth amendment. As set forth above, Ordinance 19-1984 provides that a tenured Municipal Superintendent of Public Works “shall not be removed from said office for political or other reasons except for good cause shown and upon hearing.” Even if the Township of Washington could prove that good cause existed for Plaintiffs termination, it still failed to afford him a hearing. The Defendants therefore have failed to provide Plaintiff with the procedural due process to which he was entitled. As a result, Plaintiffs motion for summary judgment with respect to his due process claim will be granted. B. Political Discrimination In 1976, the Supreme Court held that the dismissal of certain public employees solely based on partisan political affiliation infringes upon first amendment rights of belief and association. Elrod v. Burns, 427 U.S. 347, 349, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Employees determined to hold jobs that do not have policy-making or confidential functions cannot be discharged on the sole ground of political beliefs. Id. at 375, 96 S.Ct. 2673 (Stewart, J., concurring). An exception can be made “if an employee’s private political beliefs would interfere with the discharge of his public duties.” Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The Supreme Court explained that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. at 518, 100 S.Ct. 1287. In such a case, the first amendment would not be offended if the defendant can demonstrate “an overriding interest” that party affiliation is an appropriate requirement of the office and such a difference would be highly likely to render an official ineffective in carrying out his or her duties and responsibilities. Elrod, 427" }, { "docid": "9727587", "title": "", "text": "in retaliation for his relationship with his sister, CAO Sherry Freebery, and so violated his First Amendment rights to political and familial association. Although he originally alleged that Defendants also violated his free speech rights, Plaintiff has abandoned this claim. (Oral Arg. Tr. at 30.) 1. Political Association Recognizing that “to the victor belong only those spoils that may be constitutionally obtained,” the Supreme Court has held that the termination of a public employee because of his or her political affiliation generally violates the First Amendment. Rutan v. Republican Party of Ill., 497 U.S. 62, 64, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). There is a well-established exception, however, for policymaking positions. Id. “The exception for ‘policymaking’ jobs exists because political loyalty is essential to the position itself.” Galli v. New Jersey Meadowlands Comm’n, 490 F.3d 265, 270-271 (3d Cir.2007). See also Branti 445 U.S. at 518, 100 S.Ct. 1287 (“[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”); Elrod, 427 U.S. at 368, 96 S.Ct. 2673 (party affiliation may be an acceptable requirement for an employee who “acts as an advisor or formulates plans for the implementation of broad goals”). To make out a prima facie case that he or she was impermissibly terminated for political reasons, a plaintiff must show that: “1) [h]e was employed at a public agency in a position that does not require political affiliation, 2) [h]e was engaged in constitutionally protected conduct, and 3) this conduct was a substantial or motivating factor in the government’s employment decision.” -Galli, 490 F.3d at 271. In evaluating the first element of the Galli test — whether political affiliation is an appropriate requirement for a particular position — courts look to several factors, including “whether the employee has duties that" }, { "docid": "4620223", "title": "", "text": "test established by Roth, plaintiff has failed to establish any “legitimate claim of entitlement” under Indiana law to her position as clerk-secretary for the court. Absent a “legitimate claim of entitlement,” plaintiff does not possess a property interest in employment sufficient to trigger the due process requirements of the fourteenth amendment. Because no property interest exists, the court need not reach the question of whether defendant Krajewski followed proper procedure in dismissing McDonald. The due process claim in plaintiff’s complaint is hereby DISMISSED. VI. FIRST AMENDMENT CLAIM In her complaint, McDonald claims defendant Krajewski violated her first amendment rights by discharging her solely because of her political support for Orval Anderson. Defendants seek dismissal of plaintiff’s claim by asserting that McDonald was a confidential employee and, as such, was an exception to the first amendment prohibition against politically motivated patronage discharges. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court held that non-confidential, non-policy-making public employees cannot be discharged solely for exercising their first amendment freedoms such as political beliefs, expressions and associations. Furthermore, first amendment freedoms are protected regardless of the existence of a property right in one’s employment under state law. The Elrod decision firmly established that first amendment freedoms were inviolable and a government employee could only be dismissed on political grounds if he fit under the policymaker or confidential employee exception. In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Court moved away from the policymaking/confi-dential employee analysis and focused on the actual function performed by the employee. As stated by the Court: In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performances of the public office involved. 445 U.S. at 518, 100 S.Ct. at 1295 (emphasis added). The Seventh Circuit’s standard for political patronage dismissal is articulated in Nekolny v. Painter, 653 F.2d 1164 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct." }, { "docid": "5820598", "title": "", "text": "49 L.Ed.2d 547 (1976). Employees determined to hold jobs that do not have policy-making or confidential functions cannot be discharged on the sole ground of political beliefs. Id. at 375, 96 S.Ct. 2673 (Stewart, J., concurring). An exception can be made “if an employee’s private political beliefs would interfere with the discharge of his public duties.” Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The Supreme Court explained that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. at 518, 100 S.Ct. 1287. In such a case, the first amendment would not be offended if the defendant can demonstrate “an overriding interest” that party affiliation is an appropriate requirement of the office and such a difference would be highly likely to render an official ineffective in carrying out his or her duties and responsibilities. Elrod, 427 U.S. at 368, 96 S.Ct. 2673; Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Ness v. Marshall, 660 F.2d 517, 521 (3d Cir.1981); Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 395 (3d Cir.1998). The potential that an employee may cause havoc is not a sufficient basis for holding the employee can be hired or discharged because of his or her political affiliation. Armour v. County of Beaver Pennsylvania, 271 F.3d 417, 430-31 (3d Cir.2001). A political discrimination case employs similar, though not identical, burden-shifting mechanisms as those used in other employment discrimination contexts, such as Title VII cases. Stephens v. Kerrigan, 122 F.3d 171, 176 (3d Cir.1997); Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir.1993). To make out a prima facie case, public employees who claim that they suffered from an adverse employment action based on their exercise of a constitutional right must show that: (1) they worked for a public agency in a position that does not require a political affiliation; (2) they" }, { "docid": "8951035", "title": "", "text": "and therefore the Township Committee could properly consider Zold’s political affiliation in its decision not to reappoint her. Zold v. Mantua, 737 F.Supp. 308, 318 (D.N.J.1990). II. Legal Principles The Supreme Court has held that the dismissal of certain public employees solely because of their partisan political affiliation infringes their First Amendment rights of belief and association. See Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). “A nonpolicymaking, nonconfidential government employee” cannot be discharged on the sole ground of his or her political beliefs. Elrod, 427 U.S. at 375, 96 S.Ct. at 2690 (Stewart, J., concurring). On the other hand, party affiliation may be an acceptable requirement “if an employee’s private political beliefs would interfere with the discharge of his public duties.” Branti, 445 U.S. at 517, 100 S.Ct. at 1294. An employee who “acts as an advisor or formulates plans for the implementation of broad goals” is in that position. Elrod, 427 U.S. at 367-68, 375, 96 S.Ct. at 2686-87, 2690. However, “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518, 100 S.Ct. at 1295. This court has stated, “should a difference in party affiliation be highly likely to cause an official to be ineffective in carrying out the duties and responsibilities of the office, dismissals for that reason would not offend the First Amendment.” Ness v. Marshall, 660 F.2d 517, 521 (3d Cir.1981). The burden of proof is on the defendant to demonstrate “an overriding interest” in order to validate an encroachment on an employee’s First Amendment rights. Elrod, 427 U.S. at 368, 96 S.Ct. at 2687. It is not always easy to determine whether political affiliation is a legitimate factor to be considered for a particular job. Branti, 445 U.S. at 518, 100 S.Ct. at 1294-95; Elrod, 427 U.S. at 367-68, 96" }, { "docid": "19757230", "title": "", "text": "occupies a policymaking position, consideration ... be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals.” Id. at 368, 96 S.Ct. 2673. In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), a majority of the Supreme Court confirmed that “party affiliation may be an acceptable requirement for some types of government employment.” Id. at 517, 100 S.Ct. 1287. The Court in Branti “refined the ‘policymaking’ exception to the prohibition against patronage dismissals,” stating: [T]he ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. Hawkins v. Steingut, 829 F.2d 317, 320 (2d Cir.1987) (quoting Branti, 445 U.S. at 518, 100 S.Ct. 1287) (alteration in original). Because “the Branti guidelines do not lend themselves to easy or automatic application,” id., this Circuit has identified some relevant factors to be considered in deciding whether an employee may constitutionally be discharged on the basis of his or her political affiliation. “These factors include whether the employee (1) is exempt from civil service protection, (2) has some technical competence or expertise, (3) controls others, (4) is authorized to speak in the name of policymakers, (5) is perceived as a policymaker by the public, (6) influences government programs, (7) has contact with elected officials, and (8) is responsive to partisan politics and political leaders.” Vezzetti v. Pellegrini, 22 F.3d 483, 486 (2d Cir.1994). This list is not intended to be exhaustive, nor is any one factor dispositive; “[t]he proper approach is to assess all the factors in order to determine whether ‘there is a rational connection between shared ideology and job performance.’ ” Id. (quoting Savage v. Gorsky 850 F.2d 64, 68 (2d Cir.1988)). Ultimately, whether an employee’s position falls within the Elrod-Branti policymaker exception is a question of law for the court. Gordon v. County of Rockland, 110 F.3d 886, 888-89 (2d Cir.1997). However, as the above list of indicators" }, { "docid": "13448650", "title": "", "text": "88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968) the trial court must “balance ... the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” The Supreme Court later carved out an exception to this general rule. Under Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), a public official who is a “policymakér” may be fired for political reasons without offending the United States Constitution. The Supreme Court subsequently refined its description of the inquiry to be used in determining whether Elrod applies to a given employee. In Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574 (1980), two Republican Assistant Public Defenders brought suit to enjoin the Democratic Public Defender from discharging them on the basis of their political affiliation. The Supreme Court stated that, in evaluating whether a position falls under the Elrod exception, the essential inquiry is “not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” The Branti Court went on to hold that the position of assistant public defender is not the type of public office in which a particular party affiliation may be a job requirement, because public defenders represent individual defendants, rather than society as a whole. Id. at 519, 100 S.Ct. at 1295. Significantly, the Branti Court noted that the above holding was not necessarily applicable to District Attorneys: “This is in contrast to the broader responsibilities of an official such as a prosecutor. We express no opinion as to whether the deputy of such an official could be dismissed on the grounds of political party affiliation or loyalty.” Id. at 519 n. 13, 100 S.Ct. at 1295 n. 13. The rationale utilized to permit patronage dismissals in Elrod and Branti may also be applicable in the context of" }, { "docid": "16455151", "title": "", "text": "activity, there are three factors to consider. First, the employee must demonstrate that the speech involves a matter of public concern and the employee’s interest in the speech outweighs the government employer’s countervailing interest in providing efficient and effective services to the public. Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir.1996). Next, the speech must have been a substantial or motivating factor in the alleged retaliatory action. Baldassare v. New Jersey, 250 F.3d 188, 194-95 (3d Cir.2001); Green v. Phila. Hous. Auth., 105 F.3d 882, 885 (3d Cir.1997). Finally, the employer can show that it would have taken the adverse action even if the employee had not engaged in protected conduct. Pro, 81 F.3d at 1288. The second and third factors are questions of fact, while the first factor is a question of law. Id. More than twenty five years ago, the Supreme Court set forth a separate analysis for politically motivated discharges of public employees. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Court restricted the dismissal of public employees for partisan reasons to protect the employees’ freedom of political belief and association. 427 U.S. at 357-58, 96 S.Ct. 2673 (Brennan, J., plurality opinion). The Court also restricted the use of patronage to insure the efficiency of the public workplace, stating that “mere political association is an inadequate basis for imputing disposition to ill-willed conduct.” Id. at 364-65, 96 S.Ct. 2673. At the same time, the Court in Elrod allowed dismissals based on political affiliation for “policymaking” positions. Policy-making employees with different political affiliations or orientations could thwart the will of the electorate and block the implementation of new policies. Id. at 367, 96 S.Ct. 2673. Those who were not “policymakers” were “not in a position to thwart the goals of the in-party” and were protected. Id. The Court refined the policymaker exception four years later in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), holding “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather the question is whether" }, { "docid": "19757229", "title": "", "text": "Cammarato was a policymaker in light of clearly established law. In Elrod, a plurality of the Supreme Court recognized that while “the practice of [political] patronage dismissals clearly infringes First Amendment interests,” the “prohibition on encroachment of First Amendment protections is not an absolute,” and “Restraints are permitted for appropriate reasons.” Elrod, 427 U.S. at 360, 96 S.Ct. 2673. Justice Brennan, writing for the plurality, determined that “the need for political loyalty of employees” was an appropriate justification for permitting some patronage dismissals, “not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.” Id. at 367, 96 S.Ct. 2673. Justice Brennan concluded, however, that this governmental need could be met, and employees’ First Amendment interests respected, by restricting patronage dismissals to policy-making positions. See id. Justice Brennan noted that no clear line could be drawn between policymaking and nonpoli-cymaking positions, but instructed that “[i]n determining whether an employee occupies a policymaking position, consideration ... be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals.” Id. at 368, 96 S.Ct. 2673. In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), a majority of the Supreme Court confirmed that “party affiliation may be an acceptable requirement for some types of government employment.” Id. at 517, 100 S.Ct. 1287. The Court in Branti “refined the ‘policymaking’ exception to the prohibition against patronage dismissals,” stating: [T]he ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. Hawkins v. Steingut, 829 F.2d 317, 320 (2d Cir.1987) (quoting Branti, 445 U.S. at 518, 100 S.Ct. 1287) (alteration in original). Because “the Branti guidelines do not lend themselves to easy or automatic application,” id., this Circuit has identified some relevant factors to be considered in deciding" }, { "docid": "23593827", "title": "", "text": "427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). In Elrod, a newly elected Democratic sheriff discharged Republican employees of the Cook County, Illinois Sheriffs Department solely because the employees were not affiliated with or sponsored by the Democratic Party. The plurality opinion held that this practice violated the First Amendment rights of the employees. The plurality (consisting of Justices Brennan, White, and Marshall) discerned two interests which were implicated in the case: the individual employee’s right to express political beliefs, and the political system’s interest in robust and uninhibited debate. Id., 427 U.S. at 355-56, 96 S.Ct. at 2680-81. However, Justice Stewart, in his concurring opinion joined by Justice Blackmun, emphasized that the “single substantive question involved ... is whether a nonpoli-cymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs.” Id. at 375, 96 S.Ct. at 2690. The concurring Justices on that basis joined the plurality in holding that such a discharge could not be made, and the decision must be read within these confines. See also Horton v. Taylor, 767 F.2d 471, 474-75 (8th Cir.1985). In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), two assistant public defenders who were among six threatened with dismissal from a staff of nine because they were Republicans. Id. at 509, 100 S.Ct. at 1290. The Court held that the dismissals would violate the First Amendment. In so ruling the Court stated that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. at 518, 100 S.Ct. at 1295 (emphasis added). After Branti, therefore, the issue whether an employee was in a confidential or policymaking position is not controlling. Rather, the ultimate constitutional question is whether “party affiliation is an appropriate requirement" }, { "docid": "1365144", "title": "", "text": "Fed.R.CivJP. 56(c). We view the evidence in the light most favorable to the non-moving party. See Jantzen, 188 F.3d at 1251. I. Freedom of Association Claim “Where a government employer takes adverse action on account of an employee’s political association and/or political beliefs, we apply the test as developed in the Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), line of cases.” Jantzen, 188 F.3d at 1251. Under that line of cases, public employees receive First Amendment protection “from discrimination based upon their political beliefs, affiliation, or non-affiliation unless their work requires political allegiance.” Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1451 (10th Cir.1997). If the employer can demonstrate “the need for political loyalty of employees,” Elrod, 427 U.S. at 367, 96 S.Ct. 2673, then political patronage dismissals of such employees are permissible. Thus, to defeat summary judgment on her association claim, Ms. Barker must “establish a genuine dispute of fact that (1) political affiliation and/or beliefs were ‘substantial’ or ‘motivating’ factors behind [her] dismissal ]; and (2)[her] ... employment position[ ] did not require political allegiance.” Jantzen, 188 F.3d at 1251. The district court held that “the right of the City Council and its chosen manager, Palmateer, to demand [Ms. Barker’s] loyalty and support for its policies and decisions is beyond question.” Order at 12, Appellant’s App. Vol. II at 783. Having concluded that Ms. Barker’s job required political allegiance, the court granted summary judgment to the City on her association claim. The Supreme Court has stated that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518, 100 S.Ct. 1287; see also Dickeson v. Quarberg, 844 F.2d 1435, 1441 (10th Cir.1988). To make that determination, we analyze “the nature of the employee’s duties and responsibilities.” Id. at 1442; see also" }, { "docid": "5425942", "title": "", "text": "race; breach of Williams’s employment contract, as embodied in the City Charter; violation of Michigan statute M.C.L. § 168.321 for failure to comply with the terms of the City Charter; and violation of the Elliott-Larsen Civil Rights Act (M.C.L. § 37.2101 et seq.) for race discrimination. Williams later dropped the race discrimination claims and they are not before this court on appeal. After discovery, defendants moved for summary judgment. After briefing and argument on the motion, the district court granted summary judgment to the City and the individual defendants on the ground that a partisan city attorney may be turned out by a new mayoral administration and that such termination does not violate the city attorney’s first amendment rights. It also dismissed the contract claims on the ground that the Council’s political and economic opposition to Williams was a sufficient cause for his termination. II A. First amendment protection In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Supreme Court held that the first amendment prevented a county from dismissing its assistant public defenders solely on the basis of their affiliation with a particular political party. The Court noted that political affiliation could be the sole basis of termination for public employees who held positions in which political affiliation was relevant to the performance of the job. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Court had held that the first amendment prohibits the politically-motivated dismissal of governmental employees, with the exception of those in policymaking or confidential positions. In Branti, the Court elaborated on the “policymaking and confidential” standard: In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. Branti, 445 U.S. at 518, 100 S.Ct. at 1295. The Court did not elaborate on the standard it created, but left it to subsequent courts to determine, on a case-by-case basis, whether political affiliation" }, { "docid": "12285987", "title": "", "text": "445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). However, the Court has also made clear that not all governmental employees are entitled to this First Amendment protection. “[I]f an employee’s private political beliefs would interfere with his discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.” Id. at 517, 100 S.Ct. 1287. The Court explained that “party affiliation may be an acceptable requirement for some types of government employment,” provided that the public employee’s political beliefs are “relevant to” the position in question. Id. at 517-18, 100 S.Ct. 1287. Before Branti the Court’s analysis of political patronage dismissals exclusively turned on whether the government employee held a position that entailed policymaking or that required confidentiality. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The Court in Branti modified the standard: “The ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518, 100 S.Ct. 1287. A. We have held that, in determining whether political affiliation is an appropriate requirement for an employment position, courts should examine (i) the inherent duties of the position and (ii) the duties as envisioned by the incoming officeholder, rather than a particular plaintiffs job functions. “To determine whether political considerations are appropriate in making personnel decisions for a certain position, we must examine the inherent duties of that position and the duties that the new holder of that position will perform. A plaintiffs failure to meet either part of this test would cause the claim to be dismissed.” Faughender, 927 F.2d at 913. Plaintiffs contend that the district court erred in not looking to their particular job functions in determining whether political affiliation was an appropriate requirement for Plaintiffs’ positions. Plaintiffs maintain that summary judgment was inappropriate because, viewed in the light most favorable to them, the" }, { "docid": "7555495", "title": "", "text": "reasons in contravention of his First Amendment rights of association. The district court granted defendants’ Motion for Summary Judgment and denied Wetzel’s Cross-Motion for Partial Summary Judgment, concluding that Wetzel’s discharge was permissible because political affiliation is an appropriate criterion for the effective performance of the duties of the Authority Solicitor. This timely appeal followed. Our familiar standard of review is set forth in the margin. II. As in any case involving the accusation of a politically-motivated discharge of a public employee, we turn first to the Supreme Court’s decisions in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). In Elrod, the Court held that discharging certain public employees solely on the basis of their political affiliation infringes upon their First Amendment rights to belief and free association. See Elrod, 427 U.S. at 355-57, 96 S.Ct. at 2680-82. The Court, however, specifically exempted. from this general prohibition the politically-motivated discharge- of persons who hold confidential or policy making positions. Id. at 367-68, 96 S.Ct. at 2686-87. In articulating this exception, the Court noted that there is “[n]o clear line ... between policy making and nonpolicymaking positions,” but offered instruction- by suggesting that “consideration should ... be given to whether the employee acts as an advisor or formulates plans for the implementation of broad policy goals.” Id. at 368, 96 S.Ct. at 2687. In Branti, the Court addressed the difficulty in the wake of Elrod of determining whether, in a given situation, political affiliation is a legitimate factor for a public hiring authority to consider. Branti, 445 U.S. at 518, 100 S.Ct. at 1295. Refining its prior analysis, the Court observed that “the ultimate inquiry is not whether the label of ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance, of the public office involved.” Id.See also Ness v. Marshall, 660 F.2d 517, 521 (3d Cir.1981) (noting that Branti calls fpr a “functional" }, { "docid": "23335470", "title": "", "text": "freely dismissed on political patronage grounds. Second, the County argues that governmental interests outweighed the Plaintiffs’ interest in engaging in political activity in support of Hillegeist. A summary of the relevant First Amendment law as established in Supreme Court precedent and as applied in this circuit will facilitate a clear disposition of these claims. a. Relevant First Amendment law It is well established that the First Amendment places certain constraints upon dismissals from public employment based upon political affiliation and speech. As noted in Part III.B.l, supra, limitations on dismissals based upon a public employee’s political affiliation, or political patronage dismissals, emerged from the Supreme Court’s decisions in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). In Elrod, the Court held that “a nonpolicymaking, noncon-fidential government employee can[not] be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs.” Elrod, 427 U.S. at 375, 96 S.Ct. 2673 (Stewart, J., concurring). In Branti the Court clarified the rule announced in Elrod regarding when party affiliation may serve as a legitimate basis for terminating a public employee as follows: It is equally clear that party affiliation is not necessarily relevant to every policy-making or confidential position. The coach of a state university’s football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for" }, { "docid": "20691117", "title": "", "text": "judgment for Gault was improper on this basis as well. A. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Supreme Court established a narrow exception to the general rule that terminating a government official on the basis of political affiliation is presumptively unconstitutional. See id. at 515-16, 100 S.Ct. 1287; Bland, 730 F.3d at 374. Under this exception, dismissal on the basis of political affiliation may be lawful where the public employee occupies a poli-cymaking or confidential position for which effective job performance requires allegiance to a particular party. See Branti, 445 U.S. at 518, 100 S.Ct. 1287. Thus, an individual employed in such a position who “speaks out in a manner that interferes with or undermines the operation of the agency, its mission, or its public confidence, enjoys substantially less First Amendment protection than does a lower level employee.” Bland, 730 F.3d at 374 (quoting McVey, 157 F.3d at 278). The Supreme Court has made clear, however, that this exception is narrow, see id. and it has emphasized that “party affiliation is not necessarily relevant to every policymaking or confidential position,” Branti, 445 U.S. at 518, 100 S.Ct. 1287. For example, “[t]he coach of a state university’s football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government.” Id. Likewise, “although an assistant is bound to obtain access to confidential information arising out of various attorney-client relationships, that information has no bearing whatsoever on partisan political concerns.” Id. at 519, 100 S.Ct. 1287. Thus, “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. at 518, 100 S.Ct. 1287. In Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990), this Court developed a two-part test to" }, { "docid": "6194692", "title": "", "text": "First Amendment rights of high-level employees. The Supreme Court has not explicitly addressed the balance in cases involving speech by such employees, but it has applied an analogous balancing test in cases involving political affiliation, prohibiting patronage dismissals except for certain high-level employees (sometimes described as “policymakers”). Although not directly applicable, the patronage cases address similar concerns and recognize a government interest that is apposite here. a. Principles of Political Affiliation Cases In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), various ministerial employees of the Sheriff’s office (e.g., process servers and bailiffs) were fired by a newly elected Democratic Sheriff because they were Republicans. The Court held that the dismissals were barred by the First Amendment. The three-member plurality thought patronage dismissals impaired freedom of belief and association and damaged the electoral process. The plurality admitted that the government had a legitimate interest in ensuring “that representative government not be undercut by tactics obstructing the implementation of policies of the new administration....” 427 U.S. at 367, 96 S.Ct. at 2686. This interest could be met, according to the plurality, by “[ljimiting patronage dismissals to policymaking positions.” Id. Courts could determine whether an employee occupies a policymaking position by examining the nature of his responsibilities, particularly whether the employee “acts as an adviser or formulates plans for the implementation of broad goals.” Id. at 368, 96 S.Ct. at 2687. Two members concurred on the ground that “a nonpolicymaking, non-confidential government employee” could not be discharged for political belief. Id. at 375, 96 S.Ct. at 2690 (Stewart, J., concurring). In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), assistant public defenders were dismissed by a new ly appointed Democratic Public Defender because they were Republicans. The Court followed Elrod’s holding that party affiliation is usually an illegitimate basis for dismissal, but qualified its definition of the exception to the general rule: the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an" }, { "docid": "23283211", "title": "", "text": "contesting three evidentiary decisions as well as the denials of its Rule 50 and Rule 59 motions. We address the cross-appeal first. II. The Political Patronage Trilogy The Supreme Court has decided a trilogy of cases that governs our decisions in political patronage cases. In Elrod v. Burns, 427 U.S. 347, 372-73, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and again in Branti v. Finkel, 445 U.S. 507, 514-15, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Supreme Court ruled that public agencies may not constitutionally discharge employees based on their political affiliation when those employees’ positions are neither policymaking nor advisory. See Stephens v. Kerrigan, 122 F.3d 171, 176 (3d Cir.1997). It reasoned that an employee’s First Amendment right outweighs the Government’s interest in maintaining a system of political patronage. Id.) see also Robertson v. Fiore, 62 F.3d 596, 600 (3d Cir.1995) (“The constitutional prohibition against patronage derives from the coercive aspects of the spoils system which inhibit the rich political discourse protected by the First Amendment. Without the protection afforded by the Constitution, employees might forgo the expression of their political beliefs or artificially change their political association to avoid displeasing their supervisors. Such coercion, whether direct or indirect, is incongruent with a free political marketplace.”). However, Branti and Elrod did carve out an exception for positions that are classified as policymaking or advisory, in which case the Government has the burden of proving that party affiliation is an appropriate requirement for the position. Branti, 445 U.S. at 518, 100 S.Ct. 1287 (“[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”); Elrod, 427 U.S. at 368, 96 S.Ct. 2673 (holding that party affiliation may be an acceptable requirement for an employee who “acts as an advisor or formulates plans for the implementation of broad goals”); see also Peters v. Del. River Port Auth., 16 F.3d 1346, 1353 (3d Cir.1994). Branti and Elrod also held that one" } ]

[ { "docid": "11725032", "title": "", "text": "at 508 n. 4 (quoting Torres, 751 F.2d at 881). B TITLE I DOES NOT REGULATE DOMESTIC SILENT VIDEO SURVEILLANCE In the alternative to their argument that Title I prohibits domestic silent video surveillance, the defendants claim Title I regulates such surveillance. They argue that interpreting Title I to ignore domestic silent video surveillance “eviscerates” congressional intent because it produces an obvious asymmetry: a regulatory scheme which governs foreign audio surveillance, foreign silent video surveillance, domestic audio surveillance, but not domestic silent video surveillance. The defendants also claim § 2511(2)(f) indicates Congress intended to subject domestic silent video surveillance to the same restrictions as domestic audio surveillance. Again, we reject the defendants’ arguments. As the dissent to the original panel opinion noted, it is “impossible for silent television surveillance to intercept a ‘wire, oral, or electronic communication.’ ” Koyomejian, 946 F.2d at 1461 n. 1 (Hall, J., dissenting). Unlike the panel majority, we do not believe Congress must have “simply assumed [in 1986] that video surveillance was already regulated by Title III.... ” Id. at 1457. On the record before us, we do not think it “simply ... [unbelievable] that Congress intended the anomalous result of subjecting less intrusive forms of surveillance than video to exacting procedural safeguards while leaving video surveillance itself unregulated.” Id. This statement discounts the strict controls on video surveillance imposed by the Fourth Amendment and Federal Rule of Criminal Procedure 41. See Part II.C, infra. Further, although Congress’ regulatory scheme is asymmetrical, Congress is not required to think like a lawyer, and we are not empowered to impose on clear statutory language our own notions of symmetry. See Koyomejian, 946 F.2d at 1461 (Hall, J., dissenting); Torres, 751 F.2d at 885-86. Nothing in Title I or the FISA regulates or even discusses domestic silent video surveillance. We cannot rewrite those statutes. C THE FOURTH AMENDMENT REGULATES DOMESTIC SILENT VIDEO SURVEILLANCE Although domestic silent video surveillance is not regulated by statute, it is of course subject to the Fourth Amendment. See Torres, 751 F.2d at 882. Although the district court did not pass on the Fourth" } ]

[ { "docid": "8748165", "title": "", "text": "2112, 2185. But thereafter, Franks and other cases, including United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), “narrowed the circumstances in which ... [courts] apply the exclusionary rule.” Bianco, 998 F.2d at 1126. Although courts were once thought to face a “dilemma of whether [or not] to apply the Franks standard to Title III cases,” id., that supposed dilemma has been definitively resolved, and every Court of Appeals to consider the issue has concluded that the analytical framework of Franks is an appropriate standard against which to review allegedly deficient Title III wiretap applications. In light of these precedents of our Court and our sister Circuits, we hold that the District Court did not err by applying the analytical framework of Franks to determine whether the government’s wiretap application required suppression. II. Applying Franks to the Government’s Wiretap Application As noted, Title III requires government agents who file a wiretap application to provide “a full and complete statement of the facts and circumstances relied upon by the application” to establish probable cause, 18 U.S.C. § 2518(l)(b), and a “full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous,” id. § 2518(l)(c). We consider the relevant standard of review and apply it in turn to the District Court’s “necessity” and “probable cause” determinations. A. Standards of Review It is an axiom of appellate procedure that we review legal questions de novo and questions of fact for clear error. See Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). That axiom holds true in the context of Franks hearings, see Awadallah, 349 F.3d at 65; United States v. Moore, 968 F.2d 216, 220-21 (2d Cir.1992), and therefore our review is similar for each of the issues in this appeal. For instance, whether a person acted with “reckless disregard for the truth” is “a factual question of intent, and we therefore review the court’s decision for clear error,”" }, { "docid": "23371920", "title": "", "text": "delegated to government agents by relying on police assurances that a search will not take place unless there is probable cause. . Because we have concluded the affidavit failed to provide a substantial basis for the magistrate's probable cause determination, we need not consider whether, assuming probable cause had existed, the warrant conditions were adequate for a valid anticipatory warrant. .This court has recognized that a reviewing court may, in appropriate cases, turn directly to the good-faith issue without first considering the validity of the warrant under the Fourth Amendment. See United States v. McKneely, 6 F.3d 1447, 1453 (10th Cir.1993); accord United States v. Leon, 468 U.S. 897, 924-25, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). When there are important Fourth Amendment questions at issue, however, and resolution of such questions is \"necessary to guide future action by law enforcement officers and magistrates,” it is appropriate to first address the Fourth Amendment issues before turning to the good-faith issue. Leon, 468 U.S. at 925, 104 S.Ct. 3405; see also United States v. Dahlman, 13 F.3d 1391, 1397 (10th Cir.1993). In addition, resolution of the Fourth Amendment issue is often necessary, as in this case, to determine whether the officers’ reliance on the warrant was reasonable for purposes of the good-faith analysis. See Leon, 468 U.S. at 925, 104 S.Ct. 3405; see also Dahlman, 13 F.3d at 1397 (stating officers’ reliance on warrant language found to be overbroad was \"reasonable in part because this practice [of using certain boilerplate language in warrants] had not been ruled unconstitutional prior to today”). Based on these considerations, it was appropriate that this court first address the underlying validity of the warrant before considering the good-faith exception. . Rowland also argues the affidavit was submitted to the magistrate without full disclosure of all the facts. Specifically, he asserts \"Inspector Carr knew, that there were no pre-existing facts connecting criminal activily to Rowland's home” and yet \"failed to so inform the magistrate.” He also asserts Carr \"failed to inform the magistrate of the known risk that the beeper's batteries would fail.\" Suppression of evidence is" }, { "docid": "23681343", "title": "", "text": "and distinctly proved. In circumstances such as these, when a pure credibility determination was at issue, we are not inclined to disturb a decision that was quite properly and directly within the jury’s province. III. Fourth Amendment Search At trial, appellant Lloyd Phillip Maestas moved to suppress evidence attained during a February 27, 1994 search of his ranch in New Mexico because the material facts alleged in the affidavit for the search warrant were based on stale information. The district court found that the information upon which the affidavit was based indicated a long-standing, ongoing pattern of criminal activity. The district court, therefore, concluded that the warrant was supported by probable cause and denied Maestas’s suppression motion. On appeal, Maestas contends that the district court’s decision constituted reversible error. This court engages in a two-step review of a district court’s denial of a defendant’s motion to suppress. United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir.1992). The first step requires the court to determine whether the good-faith exception to the exclusionary rule applies. See United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 3420-21, 82 L.Ed.2d 677 (1984). The second step requires the court “to ensure that the magistrate had a substantial basis for ... concluding that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983) (internal quotation omitted). If the good-faith exception applies, the court need not reach the question of probable cause. Satterwhite, 980 F.2d at 320; see also United States v. Craig, 861 F.2d 818, 820 (5th Cir.1988) (“Principles of judicial restraint and precedent dictate that, in most eases, we should not reach the probable cause issue if a decision on the admissibility of the evidence under the good-faith exception of Leon will resolve the matter”). In Leon, the Supreme Court established the good-faith exception, holding “that evidence obtained by law enforcement officials acting in objectively reasonable good-faith reliance upon a search warrant is admissible in the prosecution’s ease-in-ehief, even though the affidavit on which the warrant was based was insufficient to establish probable cause.”" }, { "docid": "2383806", "title": "", "text": "terms of the warrant. Moreover, Koyomejian II held that video surveillance is not subject to the technical requirements of the wiretap statute, such as Attorney General approval. See Koyomejian II, 970 F.2d at 542; accord United States v. Cuevas-Sanchez, 821 F.2d 248, 251-52 (5th Cir.1987). Thus, the district court could not properly rely on this factor. The district court also relied on the government’s failure to utilize conventional surveillance techniques. The issuing judge adopted the affidavit’s explanation of why conventional methods would not be successful, see United States v. Commito, 918 F.2d 95, 98 (9th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 224, 116 L.Ed.2d 181 (1991), and the warrant did not require that the agents engage in any conventional surveillance before the video surveillance could begin. Thus, the agents’ failure to use conventional methods is not a violation of the warrant and does not support a finding of flagrant disregard. The district court also relied on the fact that the warrant only required that progress reports be made every ten days. This factor does not indicate that the agents flagrantly disregarded the terms of the warrant, and the district court conceded that this factor is not of any “great significance in and of itself.” Thus, this factor also does not weigh in favor of suppression. The district court also considered the fact that the warrants allegedly contained no limit on the number of surreptitious entries. This is not an error by the agents in complying with the terms of the warrant and does not support a flagrant disregard finding. There is no requirement that the warrant include a “specific authorization to enter covertly the premises described in the order.” Dalia v. United States, 441 U.S. 238, 258-59, 99 S.Ct. 1682, 1694, 60 L.Ed.2d 177 (1979) (footnote omitted). This does not mean that agents can ignore the rights of others. The agents must limit their entry in a reasonable manner. Id. at 258, 99 S.Ct. at 1693. But, the district judge relied solely on the lack of sufficient limitations in the warrant, which he could not do to support" }, { "docid": "5703199", "title": "", "text": "warrant and satisfy the statute’s stringent particularity requirements. The limitations in the wiretap statute reflect a societal determination that the threat to liberty inherent in audio surveillance requires that this intrusive investigative technique be permitted only in limited circumstances. See, e.g., United States v. King, 478 F.2d 494, 505 (9th Cir.1973) (“The Act’s procedures were designed to protect the general public from the abuse of the awesome power of electronic surveillance”). Although no federal statute regulates the government’s use of video surveillance, the existence of a law which prohibits the warrantless use of audio surveillance on a citizen alone in another person’s hotel room is strong evidence that society is not prepared to accept the war-rantless use of an even more intrusive investigative tool in the same situation. “Television surveillance is identical in its indiscriminate character to wiretapping and bugging. It is even more invasive of privacy, just as a strip search is more invasive than a pat-down search ...” Torres, 751 F.2d at 885. See also Mesa-Rincon, 911 F.2d at 1437 (stating that “video surveillance can be vastly more intrusive” than audio surveillance). Defendants’ expectation to be free from hidden video surveillance when alone in the hotel room was, therefore, objectively reasonable. In sum, although the video surveillance conducted while the informants were present is admissible, defendants had a legitimate expectation to be free from such surveillance after they were left alone in the hotel room. Because the government infringed upon defendants’ expectation of privacy without first obtaining a warrant, the Fourth Amendment requires that the fruits of the surveillance be suppressed. C. This holding places a negligible burden on law enforcement. The control ling fact is not that defendants were videotaped in a hotel room, but that they were videotaped alone in a hotel room without a warrant. In all likelihood the agents in this case could have obtained a warrant to place a hidden camera in Room 303 by satisfying the warrant requirements for video surveillance set forth in Koyomejian, 970 F.2d at 542. They had sufficient time to do so, and a warrant would probably have" }, { "docid": "23093540", "title": "", "text": "warrant. That statement is clearly and unmistakably audible, and its implication cannot be denied. . Unless defendants initially gave their consent, they had no need to revoke it. But, more significantly, the words used, without more, belie any notion that consent was not given: Hey look. We gave you all permission but now I don’t want you going though my stuff until you' get a search warrant. Can I get ... my stuff back, please? You’re going though all my stuff. I gave you permission that' you could go through it at first.... [but now] you’re doing an illegal search and seizure. (emphasis added). That statement itself renders the district court’s contrary finding clearly erroneous. Therefore, we conclude defendants consented to the search that preceded the issuance of the warrant, and there is no “poisonous tree” in this case. Our conclusion leads us to consider the search which produced the evidence upon which the charges are based. IV. A. The district court concluded Deputy Barney did not have probable cause to support the issuance of the warrant. We hold under the circumstances of this ease, however, that point is insignificant because the district,court’s finding on probable cause is trumped by the good faith exception stated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the Court held reviewing courts may “reject suppression motions posing no important Fourth Amendment questions by turning immediately to a consideration of the officers’ good faith.” 468 U.S. at 925, 104 S.Ct. at 3422. In United States v. Cook, 854 F.2d 371, 372 (10th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d 779 (1989), we stated: “Assuming but not holding that the affidavit fails to establish probable cause, we believe the district court erred in refusing to apply the good faith exception to the exclusionary rule as set forth in Leon.\" See also United States v. Bishop, 890 F.2d 212, 216 (10th Cir.1989) (“[R]esolution of whether there was probable cause supporting the warrant is not necessary to our decision ... because ... the agents’ conduct" }, { "docid": "2383795", "title": "", "text": "(en banc) {Koyomeji-an II). Thus, the district court erred by suppressing the evidence based on the wiretap statute. We do not reach the question of whether the search in this case meets the Fourth Amendment standards established by Koy-omejian II On remand, the district court may address this question in the first instance, if the district court determines that it has been properly raised. Id. at 541-42. The district court may also consider whether any alleged violation of these standards is excused by the good faith exception established in United States v. Leon, 468 U.S. 897, 925-26, 104 S.Ct. 3405, 3421-22, 82 L.Ed.2d 677 (1984). IV The Chen defendants also moved to suppress the video surveillance evidence because the agents violated the terms of the warrant by installing camera 2 and camera 3. The Chen defendants argued that the warrant authorized the installation of only one video camera, but the agents installed two additional cameras. The government agreed to suppress the evidence that was obtained from camera 3 and pointed out that no evidence was filmed by camera 2. The district court, however, concluded that this remedy was insufficient and held that the illegal installation of camera 2 and camera . 3 justified the suppression of all of the video surveillance evidence, including the evidence obtained from camera 1. The court reasoned that the suppression should not be limited to the evidence illegally seized because the agents flagrantly disregarded the terms of the warrant by installing more than one camera. A. Ordinarily, only evidence that is obtained in violation of a warrant is suppressed. United States v. Tamura, 694 F.2d 591, 597 (9th Cir.1982) (Tamura). However, in cases where there is a “flagrant disregard” for the terms of the warrant, the district court may suppress all of the evidence, including evidence that was not tainted by the violation. Medlin, 842 F.2d at 1199. This extraordinary remedy should be used only when the violations of the warrant’s requirements are so extreme that the search is essentially transformed into an impermissible general search. See id.; Tamura, 694 F.2d at 597. For example," }, { "docid": "20879542", "title": "", "text": "issue have concluded that section 2516(2) prohibits introduction of electronic surveillance evidence in federal court where state standards are violated. See United States v. Bascaro, 742 F.2d 1335, 1346-47 (11th Cir.1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 613 (1985); United States v. McNulty, 729 F.2d 1243, 1264-65 (10th Cir.1983) (en banc); United States v. Nelligan, 573 F.2d 251, 254 (5th Cir.1978); United States v. Marion, 535 F.2d 697, 702 (2d Cir.1976). We agree. Because section 2516(2) defers to the states, the interception procedures had to comply with both Idaho and federal law. B. Good Faith Exception and Retroactivity The state officers here ran afoul of a change in state law. At the time of the pen register orders, the relevant Idaho statute did not require that prosecutors show probable cause in their applications. Idaho Code § 18-6719 through 6725 (1987). A later holding of the Idaho Supreme Court, however, departed from United States Supreme Court precedent and found that, according to the state constitution, a pen register was a “search” requiring prob able cause. See State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (1988). The district court found that suppression was not required because the state officers relied in good faith on existing Idaho law when the pen registers were ordered. We have not previously considered whether the good faith exception, see United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies in these circumstances. Yet the Second Circuit addressed this issue in United States v. Aiello, 771 F.2d 621 (2nd Cir.1985), a case involving a similar change in state precedent. The Aiello court held admissible evidence obtained by state officials who reasonably relied on then-existing New York law. The court refused to suppress the evidence because new state court decisions had possibly made the district attorney’s application for a wiretap extension untimely: [Although federal law normally controls the admissibility of evidence in federal criminal trials, we will apply more stringent statutory requirements with respect to wiretap authorizations that are designed to protect an individual’s right of privacy. However, when" }, { "docid": "6852141", "title": "", "text": "Framers intended to prohibit.’ ” Id. at 1061 (quoting Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72 (1987)). The court recognized that the roving wiretap provision relaxed the usual specificity of the description of the places to be searched when a target was shown to be attempting to evade detection. Id. at 1062. In these circumstances, the court found the roving wiretap provision, in the context of Title Ill’s many other protections, to be constitutional because it “sufficiently tailors the search it authorizes to its need.” Id. at 1063. This conclusion is equally applicable to the roving intercept provision at issue in this case. 6. Even if the roving intercept provision is unconstitutional, the good faith exception to the exclusionary rule defeats the motion to suppress if the Warrant in this case was properly obtained. As described in Section IV.l infra, the judicially crafted exclusionary rule relating to Fourth Amendment violations applies to the execution of the roving intercept Order in this case. This exclusionary rule now includes an exception for objec tively reasonable reliance by a law enforcement officer upon a statute or upon a warrant if it has been properly obtained. Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987); United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In the instant case, the FBI reasonably relied on the validity of the roving intercept provisions of Title III and on the Warrant received pursuant to those provisions. Therefore, if the manner in which the Warrant was obtained does not require suppression, the good faith exception to the exclusionary rule would operate to defeat defendants’ motion to suppress the fruits of the electronic surveillance at 34 Guild Street even if the roving intercept provision of Title III was now deemed unconstitutional. In 1984, the Supreme Court decided United States v. Leon, which explicitly established a good faith exception to the judicially crafted exclusionary rule for Fourth Amendment violations in the context of law enforcement officers executing warrants that issued upon mistaken findings by a" }, { "docid": "8748164", "title": "", "text": "who were cooperating with the State.” Id. at 664. In particular, we held that “[a] challenge to the veracity of such an affida vit will succeed only when it establishes intentional or reckless omissions or false statements that are ‘necessary to the finding of probable cause’ supporting the wiretap authorization.” Id. (quoting Franks, 438 U.S. at 156, 98 S.Ct. 2674). Finally, we note that the cases relied on by Rajaratnam — United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), and United States v. Gigante, 538 F.2d 502 (2d Cir.1976) — are not to the contrary. Both cases were decided before the Supreme Court’s decision in Franks and “[a]t that time there was no good-faith or other exception to the judicially crafted exclusionary rule for violations of the fourth amendment.” Bianco, 998 F.2d at 1126. When Title III was enacted, it was not intended “generally to press the scope of the suppression role beyond [then current] search and seizure law.” S.Rep. No. 90-1097, at 96 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2185. But thereafter, Franks and other cases, including United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), “narrowed the circumstances in which ... [courts] apply the exclusionary rule.” Bianco, 998 F.2d at 1126. Although courts were once thought to face a “dilemma of whether [or not] to apply the Franks standard to Title III cases,” id., that supposed dilemma has been definitively resolved, and every Court of Appeals to consider the issue has concluded that the analytical framework of Franks is an appropriate standard against which to review allegedly deficient Title III wiretap applications. In light of these precedents of our Court and our sister Circuits, we hold that the District Court did not err by applying the analytical framework of Franks to determine whether the government’s wiretap application required suppression. II. Applying Franks to the Government’s Wiretap Application As noted, Title III requires government agents who file a wiretap application to provide “a full and complete statement of the facts and circumstances relied upon by the application” to" }, { "docid": "23461451", "title": "", "text": "of a DEA employee’s misuse of a pen register. The government was entitled to use the evidence collected on the night of May 15 against both Taketa and O’Brien. V The next question is whether the videotape evidence should have been suppressed, independent of the alleged illegal search. The appellants argue that even if the initial search was otherwise valid, a warrant was required for video surveillance. We will reach this argument for O’Brien first and then consider whether Taketa may benefit from it. Title III, 18 U.S.C. §§ 2510-20, prohibits unauthorized aural interception of communications. Since the videotaping did not intercept the contents of any communications, it did not violate Title III. Three circuits, while recognizing that videotaping does not fall within the letter of Title III, have required that applicants for warrants to videotape suspected criminal activities meet the higher constitutional standards required under Title III for wiretap warrants. United States v. Cuevas-Sanchez, 821 F.2d 248, 251-52 (5th Cir. 1987) (quoting George Orwell’s 1984 ); United States v. Biasucci, 786 F.2d 504, 510 (2d Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104, 107, 93 L.Ed.2d 54, 56 (1986); United States v. Torres, 751 F.2d 875, 884-85 (7th Cir.1984), cert. denied, 470 U.S. 1087, 105 S.Ct. 1853, 85 L.Ed.2d 150 (1985). We have not had occasion to decide this question. Nor must we decide it today. If the warrantless filming violated the reasonable privacy interests of O’Brien and Taketa, the introduction of the tape into evidence constituted reversible error. The question before us, then, is not what standards apply to warrants for video surveillance, but whether a warrant was required at all under the fourth amendment. We begin this inquiry mindful of our earlier determination that O’Brien had a reasonable expectation of privacy in his office. We find that the video surveillance was not an investigation of work-related employee misconduct that could benefit from the reasonableness standard of O’Connor. It was, rather, a search for evidence of criminal conduct. At trial, MacVean, the DEA agent brought in to assist in the investigation, conceded this point when he testified" }, { "docid": "2383794", "title": "", "text": "whether government agents exceed search is reviewed de novo). The Chen defendants argue that the district court’s flagrant disregard ruling is fact intensive and should be reviewed only for clear error. See United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir.1988) (Medlin) (district court’s determination that the violations were “not mitigated by practical considerations” and that the search was a “fishing expedition” is reviewed for clear error). However, it is unnecessary for us to resolve this issue because even if we assume that the district court’s decision can be reviewed only for clear error, reversal is necessary in this case. III The district court relied on Koyomejian I, 946 F.2d at 1453-60, which held that video surveillance is governed by the wiretap statute, and suppressed the video evidence because the government failed to comply with the requirements of the statute. Subsequently, however, an en banc court rejected the holding of Koyomejian I, and concluded that video surveillance is not regulated by the wiretap statute. United States v. Koyomejian, 970 F.2d 536, 537 (9th Cir.1992) (en banc) {Koyomeji-an II). Thus, the district court erred by suppressing the evidence based on the wiretap statute. We do not reach the question of whether the search in this case meets the Fourth Amendment standards established by Koy-omejian II On remand, the district court may address this question in the first instance, if the district court determines that it has been properly raised. Id. at 541-42. The district court may also consider whether any alleged violation of these standards is excused by the good faith exception established in United States v. Leon, 468 U.S. 897, 925-26, 104 S.Ct. 3405, 3421-22, 82 L.Ed.2d 677 (1984). IV The Chen defendants also moved to suppress the video surveillance evidence because the agents violated the terms of the warrant by installing camera 2 and camera 3. The Chen defendants argued that the warrant authorized the installation of only one video camera, but the agents installed two additional cameras. The government agreed to suppress the evidence that was obtained from camera 3 and pointed out that no evidence was" }, { "docid": "8853549", "title": "", "text": "obtained through the video and audio recording devices installed in the FBI “video car.” Ms. Jackson argues the video tape recordings and audio recordings were made in violation of Title I of the Electronic Communication Privacy Act of 1986 (Title I), codified at 18 U.S.C. §§ 2510-22, and the Fourth Amendment to the United States Constitution. We review the district court’s factual findings supporting its denial of Ms. Jackson’s motion to suppress for clear error, viewing the evidence in the light most favorable to the government. See United States v. Lambert, 46 F.3d 1064, 1067 (10th Cir.1995). However, we review de novo the district court’s conclusions as to the ultimate reasonableness of a search or seizure. Id. Title I prohibits the intentional interception, eavesdropping to intercept, or procurement of any other person to intercept or endeavor to intercept “any wire, oral, or electronic communication.” 18 U.S.C. .§ 2511(l)(a). Although Ms. Jackson seems to have abandoned the argument that Title I applies to silent video surveillance, we note the district court was correct in concluding Title I does not regulate this activity. See 18 U.S.C. § 2510. However, the use of silent video surveillance must still comply with the Fourth Amendment. See Mesa-Rincon, 911 F.2d at 1438. See also Koyomejian, 970 F.2d at 541-42. Ms. Jackson states the use of the video cameras installed on the telephone poles violated the Fourth Amendment because they were installed without a warrant. The Fourth Amendment protects persons against unreasonable searches and seizures. U.S. Const, amend. IV. Whether Ms. Jackson can claim the FBI violated her Fourth Amendment rights by using these video cameras to observe the activity occurring outside the houses depends on whether Ms. Jackson had a reasonable expectation of privacy in the area viewed by the cameras. See United States v. Gordon, 168 F.3d 1222, 1225-26 (10th Cir.), cert. denied, 527 U.S. 1030, 119 S.Ct. 2384, 144 L.Ed.2d 786 (1999) (quoting Minnesota v. Carter, 525 U.S. 83, 87, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998)). See also Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)." }, { "docid": "8853613", "title": "", "text": "the district court did not err in estimating the amount of crack cocaine attributable to Mr. Jackson. The evidence offered by the government was not without factual support. The court did not err by concluding Agent Manns’ testimony, although based on the out of court statements of others, was reliable. For the foregoing reasons, we affirm all the district court’s rulings in Mr. Jackson’s case. The judgments of the district court in cases 98-6487 and 99-6090 are AFFIRMED. . Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 212, was amended and retitled by Title I of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 1851 (Title I). See United States v. Koyomejian, 970 F.2d 536, 539 n. 1 (9th Cir.) (en banc), cert. denied, 506 U.S. 1005, 113 S.Ct. 617, 121 L.Ed.2d 550 (1992). . Although we did not directly address this issue, in United States v. Mesa-Rincon, 911 F.2d 1433 (10th Cir.1990), holding modified on other grounds, United States v. Castillo-Garda, 117 F.3d 1179, 1186-87 (10th Cir.), cert. denied, 522 U.S. 962, 522 U.S. 974, 118 S.Ct. 395, 118 S.Ct. 428, 139 L.Ed.2d 309, 139 L.Ed.2d 328 (1997), we discussed the requirements for granting a warrant to install a video camera inside a building, and noted that Title I does not prohibit video surveillance, although it provides guidelines for establishing video surveillance under the Fourth Amendment. Id. at 1437-38. Furthermore, the other circuits that have addressed this issue have also determined Title I does not regulate silent video surveillance. See United States v. Falls, 34 F.3d 674, 679-80 (8th Cir.1994); Koyomejian, 970 F.2d at 538-41; United States v. Biasucci, 786 F.2d 504, 508-09 (2nd Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104, 107, 93 L.Ed.2d 54, 56 (1986); United States v. Torres, 751 F.2d 875, 880-81 (7th Cir.1984), cert. denied, 470 U.S. 1087, 105 S.Ct. 1853, 85 L.Ed.2d 150 (1985). . Ms. Jackson cites the Mesa-Rincon and Torres cases in support of her argument. However, these cases are distinguishable. In Mesa-Rincon we dealt with" }, { "docid": "21270632", "title": "", "text": "suppress evidence, this Court reviews the district court’s findings of fact for clear error, and its legal conclusions de novo. United States v. Gillis, 358 F.3d 386, 390 (6th Cir.2004). “The evidence must be viewed in the light most likely to support the district court’s decision.” United States v. Sanford, 476 F.3d 391, 394 (6th Cir.2007) (citation and internal quotation marks omitted). We proceed assuming, without deciding, that the warrant’s omission of the residence from the grant-of-authority section rendered the warrant invalid as to a search of the residence, and “turn immediately to consider the application of the Leon good faith exception.” United States v. Ware, 338 F.3d 476, 481-82 (6th Cir.2003) (citing United States v. Leon, 468 U.S. 897, 925, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (“[CJourts [may] reject suppression motions posing no important Fourth Amendment questions by turning immediately to a consideration of the officers’ good faith.”)). Because we hold that the good-faith exception applies, we need not determine whether the warrant was invalid. A. Good-Faith Exception The Supreme Court has recognized an exception to the exclusionary rule where “the officer conducting the search acted in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate that subsequently is determined to be invalid.... ” Massachusetts v. Sheppard, 468 U.S. 981, 987-88, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) (citing Leon, 468 U.S. at 922-23, 104 S.Ct. 3405). The Supreme Court has explained that no additional deterrent effect will be achieved through the exclusion from evidence of the fruits of that search, where an officer’s reliance on a warrant is objectively reasonable. See Leon, 468 U.S. at 922, 104 S.Ct. 3405. Of course, the good-faith exception is a judicially created remedy, “subject to judicial modification based on social utility analysis,” United States v. Rice, 478 F.3d 704, 712 (6th Cir.2007), and premised on the idea that “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” Leon, 468 U.S. at 898, 104 S.Ct. 3405. As Leon emphasized, however, there are instances where exclusion is required even" }, { "docid": "2383792", "title": "", "text": "cameras could not be operated simultaneously, and the agents removed camera 2 before they left the warehouse. During the night of May 29, the agents installed video camera 3. Camera 3 was located inside the warehouse, but was used to film an area outside the building. Once Assistant United States Attorney Kennedy, who was assisting with the investigation, learned that camera 3 had been installed, he ordered it to be disconnected. On June 20, Jim Chen, Lucy Chen, Kelly Chen, and Li Yuen Shing began opening the boxes in the warehouse. Before completing this task, however, they noticed video camera 1. The agents then executed a previously obtained search warrant for the warehouse and arrested these four defendants. Mike Chen was subsequently arrested in Massachusetts. Mike Chen, Jim Chen, Lucy Chen, Kelly Chen, and Li Yuen Shing (the Chen defendants) were indicted for a number of offenses, including conspiracy to import heroin and importation of more than 1,000 pounds of heroin. The Chen defendants filed motions to suppress the video surveillance evidence. The district court relied on United States v. Koyomejian, 946 F.2d 1450, 1453-60 (9th Cir.1991) (Koyomejian I), and suppressed all of the video surveillance evidence because the government failed to comply with the technical procedures specified in 18 U.S.C. §§ 2510-21 (the wiretap statute). The district court also held that the suppression of all of the video surveillance evidence was justified because the government flagrantly disregarded the terms of the warrant. II We review the lawfulness of a search de novo. United States v. Ayers, 924 F.2d 1468, 1479 (9th Cir.1991) (Ayers). Whether video surveillance is governed by the wiretap statute is a question of law subject to de novo review. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). However, the standard for reviewing a district court’s determination that government agents flagrantly disregarded the terms of a warrant is unclear. The government contends that the district court’s ruling should be reviewed de novo. See Ayers, 924 F.2d at 1480 (scope of" }, { "docid": "3947168", "title": "", "text": "to the lack of probable cause, “the police officers who acted on the warrant nonetheless did so in good faith.” Id. at 30:4-5. As a result, the court concluded the good-faith exception to the exclusionary rule shielded the officers’ conduct in searching for and seizing the child pornography from Mr. Edwards’s home, despite any presumed deficiency in the warrant. Id. at 30:6-23. Mr. Edwards then entered a conditional guilty plea to the indictment’s first count of possession of child pornography, and the district court dismissed the remaining counts on the Government’s motion. The district court sentenced Mr. Edwards to sixty-three months in prison and seven years of supervised release. Mr. Edwards now appeals his conviction on the ground that the motion to suppress should have been granted. III. DISCUSSION A. Probable Cause Our precedent allows us discretion “to address probable cause or to proceed directly to good faith” in reviewing the denial of a motion to suppress. United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir.2005). We are mindful, however, that “[t]here is no need for courts to adopt the inflexible practice of always deciding whether the officers’ conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated.” United States v. Leon, 468 U.S. 897, 924, 104 S.Ct. 3430, 82 L.Ed.2d 677 (1984). Thus where, as here, “resolution of a Fourth Amendment issue is ‘necessary to guide future action by law enforcement officers and magistrates,’ ” we may find it appropriate to address the adequacy of the search warrant’s probable-cause determination first. United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir.2000) (quoting Leon, 468 U.S. at 925, 104 S.Ct. 3405). 1. Standard of Review On review of a district court’s denial of a motion to suppress, “we review the district court’s factual findings for clear error and consider the evidence in the light most favorable to the Government.” United States v. Haymond, 672 F.3d 948, 958 (10th Cir.2012). Moreover, determinations by the district court “relating to the sufficiency of a search warrant are conclusions of law which this court reviews de" }, { "docid": "2383797", "title": "", "text": "we ordered wholesale suppression in United States v. Rettig, 589 F.2d 418, 423 (9th Cir.1978) (Rettig). There, the government agents were issued a warrant to search for evidence of marijuana possession, but they ignored the limitations of the warrant and searched for evidence of a cocaine conspiracy despite the fact that the government had earlier been denied a warrant to conduct just such a search. Id. at 420-22. In contrast, we have refused to suppress all of the evidence where the agents who exceeded their authority under the warrant “were motivated by considerations of practicality rather than by a desire to engage in indiscriminate ‘fishing.’ ” Tamura, 694 F.2d at 597. Thus, wholesale suppression is appropriate under the flagrant disregard standard only when the officers transform the search into an impermissible general search by ignoring the terms of the warrant and engaging in indiscriminate fishing. B. We start our analysis by pointing out that the district court erred in balancing the interests at stake. The district court properly determined that video surveillance is very intrusive, and that the Chen defendants are entitled to protection under the Fourth Amendment. See United States v. Mesa-Rincon, 911 F.2d 1433, 1436-37, 1442 (10th Cir.1990). The district court also correctly pointed out that a business is entitled to less protection from video surveillance than an individual’s private home. Id. at 1443. The district court, however, erred by holding that this lessened expectation of privacy is offset because this was merely a “mercantile crime” and there was no immediate threat of violence or harm to persons or property. Drug crimes are very serious and represent one of the greatest threats to our society. Drug conspiracies are often well-planned, and video and audio surveillance may be necessary because the conspirators often carefully conceal their activities and identities by using code words and other techniques. See United States v. Abascal, 564 F.2d 821, 827 (9th Cir.1977) (Abascal), cert. denied, 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d 538 and 435 U.S. 953, 98 S.Ct. 1583, 55 L.Ed.2d 804 (1978). Therefore, in balancing the interests, the fact that this" }, { "docid": "2383805", "title": "", "text": "not have been observed. The district court’s minimization findings are not sufficient to support its flagrant disregard finding. The district court failed to explore the scope of the alleged minimization violation adequately or to indicate why the agents’ actions transformed this into a general search. Thus, the district court erred by holding there were minimization violations without making further findings. We, however, do not foreclose the possibility that the suppression of some of the evidence may be appropriate. Oh remand, the district court may make additional findings and hold additional hearings, if necessary, in order to determine whether the government’s minimization efforts were constitutionally sufficient. The district court should then carefully examine the scope of any alleged minimization violations and determine what evidence may appropriately be suppressed. The district court also relied on the agents’ failure to secure approval of the Attorney General or his special designate before the video surveillance was conducted. The warrant did not require that approval be obtained, and thus this factor does not indicate that the agents flagrantly disregarded the terms of the warrant. Moreover, Koyomejian II held that video surveillance is not subject to the technical requirements of the wiretap statute, such as Attorney General approval. See Koyomejian II, 970 F.2d at 542; accord United States v. Cuevas-Sanchez, 821 F.2d 248, 251-52 (5th Cir.1987). Thus, the district court could not properly rely on this factor. The district court also relied on the government’s failure to utilize conventional surveillance techniques. The issuing judge adopted the affidavit’s explanation of why conventional methods would not be successful, see United States v. Commito, 918 F.2d 95, 98 (9th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 224, 116 L.Ed.2d 181 (1991), and the warrant did not require that the agents engage in any conventional surveillance before the video surveillance could begin. Thus, the agents’ failure to use conventional methods is not a violation of the warrant and does not support a finding of flagrant disregard. The district court also relied on the fact that the warrant only required that progress reports be made every ten days. This factor" }, { "docid": "2383793", "title": "", "text": "relied on United States v. Koyomejian, 946 F.2d 1450, 1453-60 (9th Cir.1991) (Koyomejian I), and suppressed all of the video surveillance evidence because the government failed to comply with the technical procedures specified in 18 U.S.C. §§ 2510-21 (the wiretap statute). The district court also held that the suppression of all of the video surveillance evidence was justified because the government flagrantly disregarded the terms of the warrant. II We review the lawfulness of a search de novo. United States v. Ayers, 924 F.2d 1468, 1479 (9th Cir.1991) (Ayers). Whether video surveillance is governed by the wiretap statute is a question of law subject to de novo review. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). However, the standard for reviewing a district court’s determination that government agents flagrantly disregarded the terms of a warrant is unclear. The government contends that the district court’s ruling should be reviewed de novo. See Ayers, 924 F.2d at 1480 (scope of whether government agents exceed search is reviewed de novo). The Chen defendants argue that the district court’s flagrant disregard ruling is fact intensive and should be reviewed only for clear error. See United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir.1988) (Medlin) (district court’s determination that the violations were “not mitigated by practical considerations” and that the search was a “fishing expedition” is reviewed for clear error). However, it is unnecessary for us to resolve this issue because even if we assume that the district court’s decision can be reviewed only for clear error, reversal is necessary in this case. III The district court relied on Koyomejian I, 946 F.2d at 1453-60, which held that video surveillance is governed by the wiretap statute, and suppressed the video evidence because the government failed to comply with the requirements of the statute. Subsequently, however, an en banc court rejected the holding of Koyomejian I, and concluded that video surveillance is not regulated by the wiretap statute. United States v. Koyomejian, 970 F.2d 536, 537 (9th Cir.1992)" } ]

[ { "docid": "22608459", "title": "", "text": "differences between personal- and official-capacity actions. Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. See, e. g., Scheuer v. Rhodes, 416 U. S. 232, 237-238 (1974). Official-capacity suits, in contrast, “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell v. New York City Dept. of Social Services, 436 U. S. 658, 690, n. 55 (1978). As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. Brandon, 469 U. S., at 471-472. It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself. On the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right. See, e. g., Monroe v. Pape, 365 U. S. 167 (1961). More is required in an official-capacity action, however, for a governmental entity is liable under § 1983 only when the entity itself is a “ ‘moving force’ ” behind the deprivation, Polk County v. Dodson, 454 U. S. 312, 326 (1981) (quoting Monell, supra, at 694); thus, in an official-capacity suit the entity’s “policy or custom” must have played a part in the violation of federal law. Monell, supra; Oklahoma City v. Tuttle, 471 U. S. 808, 817-818 (1985); id., at 827-828 (Brennan, J., concurring in judgment). When it comes to defenses to liability, an official in a personal-capacity action may, depending on his position, be able to assert personal immunity defenses, such as objectively reasonable reliance on existing law. See Imbler v. Pachtman, 424 U. S. 409 (1976) (absolute" } ]

[ { "docid": "2268554", "title": "", "text": "as Plaintiffs have not pointed to any custom or policy of the County or a decision by the final policy maker to infringe upon Decedent's Fourth Amendment rights. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986); Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978); Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1480 (11th Cir.1991). . Although Plaintiffs have named all the individual Defendants as being sued individually and in their official capacity, the real target of the official capacity suit is Paulding County. \"Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, the entity’s policy or custom must have played a part in the violation of federal law [or the Constitution].\" Hafer v. Milo, 502 U.S. -, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301, 309 (1991) (citation omitted). Consequently, this Court will consider all the allegations relating to the official capacity suits against the individual defendants as being one suit against the County. . A municipal act may include \"a single decision made by a [county] official if that official is the final policymaker with respect to the subject matter in question.\" Mandel v. Doe, 888 F.2d 783, 793 (11th Cir.1989). \"In making the determination [of who is the final policymaker], the Court should examine the relevant positive law, including ordinances, rules and regulations, but also the relevant customs and practices having the force of law.” Id. In this case, Sheriff Grogan is the final policymaker with regard to the operation of the jail and the caliber of medical care to be provided inmates at the jail. Consequently, the official capacity suits against Defendants Hunton, Williams, Helms and Walton are moot as these individuals do not make the policy for the jail. If a policy of deprivation does exist, the County would be liable and Sheriff Grogan in his official capacity would be liable. No other parties would be liable in their official capacities. . This exception to" }, { "docid": "19693994", "title": "", "text": "support liability under § 1983. (PL’s 24-25.) Official-capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (internal quotation marks omitted). Such suits should therefore be treated as suits against the governmental entity. Id. Where a plaintiff fails to establish liability against a municipal entity, municipal employees sued in their official capacities are similarly entitled to judgment in their favor. See Smith v. Sch. Dist. of Phila., 112 F.Supp.2d 417, 425 (E.D.Pa.2000). On the other hand, personal-capacity suits “seek to impose individual liability upon a government officer for actions taken under color of state law.” Hafer, 502 U.S. at 25, 112 S.Ct. 358. When a plaintiff brings a § 1983 claim against a defendant in his or her individual capacity, the plaintiff must establish that the defendant had “personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). Personal involvement can be demonstrated through “allegations of personal direction or of actual knowledge and acquiescence.” Id. In his complaint, Plaintiff expressly alleges that his claims were brought against Defendants Archie, McGregor-Armbrister, Dworetzky and Irizarry in their official capacities as SRC Commissioners. (Compl. ¶¶ 6-9.) However, Plaintiffs complaint is silent as to what capacity he is suing Defendants Ackerman, Nunery and Matthews (collectively, “School District employee-Defendants”). (See Compl. ¶¶4-5, 10-12.) Viewing the allegations in a light most favorable to Plaintiff, as we must, we construe his complaint as asserting claims against the School District employee-Defendants in both their official and individual capacities. With regard to the official-capacity claims, we agree with Defendants that Plaintiffs concession as to municipal liability bars his claims against the individual Defendants. Thus, we will dismiss Count XIII against Archie, McGregor-Armbrister, Dworetzky and Irizarry, as well as the School District employee-Defendants in their official capacities. Nevertheless, because Defendants have not challenged whether Plaintiffs complaint has sufficiently alleged personal involvement by the School District employee-Defendants, such that they" }, { "docid": "19877299", "title": "", "text": "Finance are “the State.” See Tenn.Code Ann. §§ 4-3-101 (designating DCS and the Department of Finance & Administration, among others, as “administrative departments of state government”); 4-3-1001 (creating the Department of Finance & Administration); 4-3-1002 (giving the Commissioner of Finance & Administration “charge and general supervision” over that department); 37-5-101 (creating the Department of Children’s Services); 37-5-102 (discussing how the State of Tennessee will accomplish certain purposes through DCS). To the extent, then, that the plaintiffs’ claims against the defendants in this case are § 1983 claims against those persons in their official capacities, as agents of state administrative departments, they are non-cognizable. The real party in interest is not the official, but the government entity whose “policy or custom ... played a part in the [alleged] violation of federal law.” Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (internal quotations omitted). Therefore, the need for this court to undertake a broad sovereign immunity analysis with respect to the § 1983 claims is obviated by the fact that the defendants in their official capacities are not recognized as “persons” under § 1983. Even if Tennessee’s sovereign immunity has been properly waived or abrogated for the purposes of the federal statute the defendants allegedly violated, a § 1983 claim against the defendants in their official capacities cannot proceed because, by definition, those officials are not persons under the terms of § 1983. It is important to understand the scope of Will in the context of suits against government officials. First, Will does not shield from liability public officials in their individual capacities, who are considered “persons” for the purposes of suits brought under § 1983, even when they are carrying out government functions. See Hafer, 502 U.S. at 27, 112 S.Ct. 358. Personal liability against a state official can be established under § 1983 by showing “that the official, acting under color of state law, caused the deprivation of a federal right.” Graham, 473 U.S. at 166, 105 S.Ct. 3099. Second, while Will removes persons acting in their official capacities on behalf of the State" }, { "docid": "406907", "title": "", "text": "survey was conducted and filed as a public document, the district court could take judicial notice thereof, or the parties could include such a survey in their papers. We recognize that this comes to us as a decision on the pleadings and that the defendants may have such proof, but it has not been made a part of the record. For the foregoing reasons, Plaintiffs’ Establishment Clause claim survives a motion to dismiss under Rule 12(b)(6). ii. Official-Capacity Defendants As to their claim under the Establishment Clause, Plaintiffs named in the First Amended Complaint twelve defendants in their official capacities and three defendants in their personal capacities. In the Third Amended Complaint, Plaintiffs named Cate as the sole defendant in his official and individual capacity. Plaintiffs appeal only the district court’s dismissal of official-capacity defendants Cate, Latti-more, the SPB Members, DCP Director Del Sayles-Owen, and DCP Community Partnership Manager Barry Smith. We therefore do not discuss whether Plaintiffs properly pleaded a claim against these defendants in their individual capacities. a. Cate and Lattimore An official-capacity suit “represent[s] only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (quoting Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); see Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). “Suits against state officials in their official capacity therefore should be treated as suits against the State.” Hafer, 502 U.S. at 25, 112 S.Ct. 358. A plaintiff seeking injunc-tive relief against the State is not required to allege a named official’s personal involvement in the acts or omissions constituting the alleged constitutional violation. See id.; Graham, 473 U.S. at 166, 105 S.Ct. 3099. Rather, a plaintiff need only identify the law or policy challenged as a constitutional violation and name the official within the entity who can appropriately respond to injunctive relief. See L.A. Cnty. v. Humphries, — U.S. -, 131 S.Ct. 447, 452, 454," }, { "docid": "8696840", "title": "", "text": "for an underlying substantive constitution al violation and, alternatively, (2) the alleged facts did not establish an unconstitutional policy or custom of the County. A suit against a governmental actor in his official capacity is treated as a suit against the governmental entity itself. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (citing Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). A governmental entity cannot be held vicariously liable for its agent’s acts under § 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Rather, a plaintiff must identify a governmental “policy or custom that caused the plaintiffs injury” to recover from a governmental entity under § 1983. Bd. of the County Comm’rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citations and quotations omitted). A governmental policy “involves a deliberate choice to follow a course of action ... made from among various alternatives by an official who has the final authority to establish governmental policy.” Doe v. Special Sch. Dist., 901 F.2d 642, 645 (8th Cir.1990) (quotations and citations omitted). A governmental custom involves “a pattern of ‘persistent and widespread’ ... practices which bec[o]me so ‘permanent and well settled’ as to have the effect and force of law.” Id. at 646 (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018). “This circuit has consistently recognized a general rule that, in order for municipal liability to attach, individual liability first must be found on an underlying substantive claim.” McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir.2005). As discussed in Section II.A, supra, no Van Burén County defendant is individually liable for an underlying substantive claim. Therefore, the County cannot be held liable under § 1983. Moreover, we note that Brockinton has failed to allege facts that show an unconstitutional policy or custom of the County. Brockin-ton claims that the ALETA training provided to VBCSD officers was constitutionally inadequate, but he points to no facts that support this bald assertion. We agree" }, { "docid": "8917236", "title": "", "text": "the Complaint does not allege a state constitutional claim. Pl.’s Reply Mem. at 2. Defendant argues that “[bjecause no such allegation is made, Plaintiffs’ state constitutional claims in Count II must be dismissed.” Def.’s Mem. at 5. To the contrary, because no allegation is made, no dismissal is necessary. 2. Claims Under The 14th Amendment. To explain the issues as the parties have framed them, the Court will review the Complaint, the bases of the motion to dismiss, the Plaintiffs’ responses, and the Defendants’ counter-responses. Count II of the Complaint is directed against Defendants Allan, Fiacco, Hoff, Dana, and Whe-lan. It alleges each Defendant deprived the Plaintiffs of their substantive and procedural due process rights acting under color of state law and demands declaratory relief and compensatory and other damages. Defendants first move to dismiss Count II to the extent it attempts to state a claim against them in their “official capacity.” a. Official Capacity Claims. To sustain a claim against an official in an official capacity, there must be an allegation “that the entity followed a policy or custom” that was unconstitutional. Burrell v. Hampshire County, 307 F.3d 1, 7 (1st Cir.2002) (“A damages suit against an official in an official capacity is tantamount to a suit against the entity of which the official is an agent ... and there is no claim here that the entity followed a policy or custom or deliberate indifference”); see Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). An official-capacity claim under § 1983 requires a showing that the government itself was a “moving force” behind the deprivation. Graham, 473 U.S. at 166, 105 S.Ct. 3099; Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Monell v. New York City Dep’t Soc. Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To this end, an essential element of an official-capacity lawsuit is that the entity’s policy or custom must have played a part in" }, { "docid": "21369432", "title": "", "text": "there be such a request, as the Browns sued Defendants in their official and not their individual capacities. With respect to state officials, such as Mr. Herbert and Mr. Shurtleff, \"[sjection 1983 plaintiffs may sue individual-capacity defendants only for money damages and official-capacity defendants only for injunctive relief.” Brown v. Montoya, 662 F.3d 1152, 1161 n. 5 (10th Cir.2011) (citing Hafer v. Melo, 502 U.S. 21, 30, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)); see also Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal Courts and the Federal System 958 (6th ed. 2009) (\"[Djamages actions pleaded against state officials in their 'official capacity’ will ordinarily be dismissed as barred by the state's sovereign immunity.... When equitable relief is sought, the defendant official is ordinarily named in an official capacity.” (emphasis in original)). Assuming he is a municipal official, matters are more complicated as to Mr. Buhman. (If he is instead a state official, the Browns could not seek damages against him for the same reason they could not seek damages against Mr. Herbert and Mr. Shurtleff.) \"The Supreme Court has determined that an official-capacity suit brought under § 1983 generally represents only another way of pleading an action against an entity of which an officer is an agent, and as long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Moss v. Kopp, 559 F.3d 1155, 1168 n. 13 (10th Cir.2009) (quotations and brackets omitted). \"To establish a claim for damages under § 1983 against municipal entities or local government bodies, the plaintiff must prove (1) the entity executed a policy or custom (2) that caused the plaintiff to suffer deprivation of constitutional or other federal rights.” Id. at 1168. Here, the Browns did not allege or attempt to prove in district court that Mr. Buhman acted in accordance with a Utah County policy or custom. Damages were therefore unavailable under § 1983. See Fal-lon, et al., supra, at 958-62 (explaining that \"[djamages actions against local" }, { "docid": "19693993", "title": "", "text": "the factual allegations indicate that these actions would have occurred only prior and up to his termination, and not during the course of his interactions with the Queens Library System. Thus, we will dismiss Count XII. E. First Amendment—Retaliation (Count XIII) 1. Liability of the Individual Defendants We first note that Plaintiff has conceded that his First Amendment retaliation claim fails to state a plausible claim against the School District and the SRC. (See Pl.’s Br. 24.) Therefore, we will dismiss Count XII I against those Defendants. In their motion, Defendants argue that Plaintiffs First Amendment claim against the individual Defendants must also fail. Defendants contend that Plaintiff has sued the individual Defendants only in their official capacities. Accordingly, Defendants assert that Plaintiffs concession on municipality liability is fatal to his claim against the individual Defendants. (Defs.’ Br. 29; Defs.’ Reply Br. 8-9.) Plaintiff acknowledges that his claims against the individual Defendants cannot be predicated on a theory of respondeat superior, but contends that he has pled sufficient personal involvement of the individual Defendants to support liability under § 1983. (PL’s 24-25.) Official-capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (internal quotation marks omitted). Such suits should therefore be treated as suits against the governmental entity. Id. Where a plaintiff fails to establish liability against a municipal entity, municipal employees sued in their official capacities are similarly entitled to judgment in their favor. See Smith v. Sch. Dist. of Phila., 112 F.Supp.2d 417, 425 (E.D.Pa.2000). On the other hand, personal-capacity suits “seek to impose individual liability upon a government officer for actions taken under color of state law.” Hafer, 502 U.S. at 25, 112 S.Ct. 358. When a plaintiff brings a § 1983 claim against a defendant in his or her individual capacity, the plaintiff must establish that the defendant had “personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d" }, { "docid": "4058636", "title": "", "text": "judgment. . Plaintiffs' papers suggest that their claim against the District administrators is premised primarily on the theory that the personal actions of those officials directly contributed to the creation of a hostile atmosphere for Oona and other female students. See Mem. P & A Opp’n Defs.' Mot. Dismiss at 10 (\"[Djefendants' wrongful conduct also consisted of actively creating, developing, and maintaining a climate of blatant sexual favoritism.... Th[e] harassment was then exacerbated by the school district officials’ own failure to investigate and/or punish the boys who were verbally and physically harassing Oona, or punish defendants McCaffrey and Hill for allowing the harassment to continue....”) (emphasis in original). As noted above, however, plaintiffs provide absolutely no factual examples of ostensibly discriminatory conduct on the part of White, Solie and Alsobrook. . The Court trusts that plaintiffs’ complaint will not be amended to include new factual allegations against defendants White, Solie, and Also-brook unless plaintiffs' counsel first satisfy their obligation under Rule 11 of the Federal Rules of Civil Procedure to verify that any new allegations are well grounded in fact. The Court also notes that at oral argument, plaintiffs' counsel stated that only three individual defendants' — McCaffrey, Ibach, and Hill — were being sued in their individual capacities. This response appears to contradict plaintiffs' complaint, which names as defendants in the section 1983 claim “McCaffrey, Ibach, Hill, Lundy, So-lie, White, and Alsobrook, Individually.\" Complaint 18:2-4 (emphasis added). The Court directs plaintiffs to file an amended complaint within 30 days of the date of this order unambiguously specifying the capacity, official or individual, in which each defendant is being sued. That distinction is of central importance in determining the scope of immunity, if any, to which the defendants are entitled. Supreme Court precedent clearly establishes that a suit against a state official in her official capacity is treated as a suit against the state, and Eleventh Amendment immunity applies in such suits. Hafer v. Melo, 502 U.S. 21, 23-25, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991) (explaining that \"neither a State nor its officials acting in their official capacities" }, { "docid": "8917237", "title": "", "text": "followed a policy or custom” that was unconstitutional. Burrell v. Hampshire County, 307 F.3d 1, 7 (1st Cir.2002) (“A damages suit against an official in an official capacity is tantamount to a suit against the entity of which the official is an agent ... and there is no claim here that the entity followed a policy or custom or deliberate indifference”); see Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). An official-capacity claim under § 1983 requires a showing that the government itself was a “moving force” behind the deprivation. Graham, 473 U.S. at 166, 105 S.Ct. 3099; Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Monell v. New York City Dep’t Soc. Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To this end, an essential element of an official-capacity lawsuit is that the entity’s policy or custom must have played a part in the violation of federal law. Hafer, 502 U.S. at 25, 112 S.Ct. 358; Graham, 473 U.S. at 166, 105 S.Ct. 3099; Monell, 436 U.S. at 690, 98 S.Ct. 2018; Burrell, 307 F.3d at 7. Defendants point to the absence of any such allegation in Count II as fatal to the Plaintiffs claim. Plaintiffs respond by noting Count II demands injunctive relief against Defendants Hoff, Dana, and Whelan, and monetary relief against all individual Defendants. Because the § 1983 claim is directed against neither the University of Maine as a state entity nor the individual Defendants in their official capacities, Burrell, they argue, is inapplicable. Pl.’s Reply Mem. at 4. To the extent the Plaintiffs seek monetary damages, it is against the individual Defendants in their individual capacities, not against the State. In Will v. Michigan Department of State Police, the Supreme Court held: Of course a state official in his or her official capacity, when sued for injunc-tive relief, would be a person under section 1983 because ‘official-capacity actions for prospective relief are not treated" }, { "docid": "406908", "title": "", "text": "suit “represent[s] only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (quoting Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); see Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). “Suits against state officials in their official capacity therefore should be treated as suits against the State.” Hafer, 502 U.S. at 25, 112 S.Ct. 358. A plaintiff seeking injunc-tive relief against the State is not required to allege a named official’s personal involvement in the acts or omissions constituting the alleged constitutional violation. See id.; Graham, 473 U.S. at 166, 105 S.Ct. 3099. Rather, a plaintiff need only identify the law or policy challenged as a constitutional violation and name the official within the entity who can appropriately respond to injunctive relief. See L.A. Cnty. v. Humphries, — U.S. -, 131 S.Ct. 447, 452, 454, 178 L.Ed.2d 460 (2010); Hafer, 502 U.S. at 25, 112 S.Ct. 358. Here, Plaintiffs seek an affirmative injunction requiring prison administration to adopt and apply neutral criteria in determining chaplain hiring needs at CCWF, which operates under CDCR control. They allege that “Cate is responsible for the administration of the CDCR, including its policies, practices, and customs, and therefore has the responsibility and authority to ensure that the CDCR religious accommodation policies comply with and do not violate federal and state constitutions and statutory requirements.” They also assert that “Lattimore is responsible for the policies and practices regarding the day-to-day operation of CCWF, including the hiring and supervision of all subordinate personnel at CCWF, including chaplains.” Defendants admit in their Motion to Dismiss the First Amended Complaint that Lattimore is the “most appropriate” defendant to execute court-ordered injunctive relief and that “Cate would have the authority to ensure execution of any order issued.” We therefore hold that Cate and Lattimore are proper official-capacity defendants for Plaintiffs’ Establishment Clause claim. b. SPB Members The district court" }, { "docid": "10690482", "title": "", "text": "Further, the Court finds that the individual-capacity claims against Weidenbenner under Title II of ADA and § 504 of the Rehabilitation Act must be dismissed with prejudice because there is no individual liability under Title II of the ADA or the Rehabilitation Act. Carten v. Kent State Univ., 282 F.3d 391, 396-97 (6th Cir.2002) (no individual liability under ADA); Lee v. Mich. Parole Bd., 104 Fed.Appx. 490, 492 (6th Cir.2004) (no individual liability under § 504 of the Rehabilitation Act); Hiler v. Brown, 177 F.3d 542 (6th Cir.1999) (no individual lia bility under the Rehabilitation Act); Pritchard v. S. Co. Servs., 102 F.3d 1118, 1119 (11th Cir.1996), cert. denied, 520 U.S. 1274, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997) (finding no personal liability for supervisors under either the Rehabilitation Act or the ADA), Weidenbenner’s motion to dismiss with prejudice the ADA and Rehabilitation Act claims against her in her individual capacity will therefore be granted. Weidenbenner further argues that the official-capacity claims against her must be dismissed on the basis that a claim against an individual in her official capacity is tantamount to a claim against the employer and that where, as here, the employer is also sued, the official-capacity suit against the employee is simply redundant and may be dismissed. Cf. Johnson v. Wash. County Career Ctr., No. 2:10-CV-076, 2010 WL 2570929 (S.D.Ohio June 22, 2010) (dismissing official-capacity Rehabilitation Act and ADA claims against an individual where the state-entity employer was also named as a defendant) (citing Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (“[T]he real party in interest in an official-capacity suit is the government entity itself and not the named official.”); Von Herbert v. City of St. Clair Shores, 61 Fed.Appx. 133, 140 (6th Cir.2003) (dismissing official-capacity claim as redundant and subsumed by claim against the government entity)). Defendants have not voiced any opposition to this argument. The motion to dismiss the official-capacity claims against Weidenbenner will therefore be granted. (2) Count III of the Complaint— Alleged Violation of Parental Rights It is well established that parents have a liberty" }, { "docid": "5709196", "title": "", "text": "the reasons stated by Defendants, the Court finds that the retaliation claim against the Board members in their individual capacities based on the May 14, 2014 order is futile. This does not end the matter, however, because Plaintiff has brought suit against the Board members in both their individual and official capacities, and the doctrine of quasi-judicial immunity extends only to individual capacity claims. See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (“[T]he only immunities available to the defendant in an official-capacity action are those that the governmental entity possesses.”); Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 482-86 (5th Cir.2000) (holding that quasi-judicial immunity is inapplicable in official-capacity suits). Defendants do not argue, and the record does not clearly establish, that Younger abstention is appropriate as to this claim. The Court therefore must consider whether granting Plaintiff leave to supplement its complaint with this First Amendment retaliation claim against six Board members in their official capacities would be futile. “Because the real party in interest in an official-capacity suit is the governmental entity and not the named official,” Hafer, 502 U.S. at 25, 112 S.Ct. 358 (internal quotation marks omitted), Plaintiffs official capacity claim against the Board members is effectively a claim against the District of Columbia. However, municipalities are not liable under § 1983 for constitutional torts committed by their employees. Municipalities are liable “only for constitutional torts arising from ‘action pursuant to official municipal policy.’ ” Triplett v. District of Columbia, 108 F.3d 1450, 1453 (D.C.Cir.1997) (quoting Monell v. Dep’t Soc. Servs. of N.Y., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). And while Plaintiffs supplemental complaint does allege that the Board members were acting “under color of state authority as members of the Alcoholic Beverage Control Board for the District of Columbia Government,” Suppl. Compl. ¶ 78, it does not allege that the May 2014 Board Order could be considered a product of the District’s policy or custom. Nevertheless, Plaintiff has argued that such a showing is not required because the" }, { "docid": "2773681", "title": "", "text": "v. Cal., 191 F.3d 1020, 1027 (9th Cir.1999) (quoting Graham, 473 U.S. at 165, 105 S.Ct. 3099); see also Hafer v. Melo, 502 U.S. 21, 25, 112 5.Ct. 358, 116 L.Ed.2d 301 (1991) (finding that “[p]ersonal capacity suits seek to impose liability on state officials for acts taken under color of state law”); Stivers v. Pierce, 71 F.3d 732, 749 (9th Cir.1995). In setting forth the distinctions between personal and official capacity suits, the Supreme Court said: Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 237-238, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Official-capacity suits, in contrast, “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell [ ], 436 U.S. at 690 n. 55[], 98 S.Ct. 2018. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. Brandon, 469 U.S. at 471-472, 105 S.Ct. 873. It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). “While the plaintiff in a personal-capacity suit need not establish a connection to governmental ‘policy or custom,’ officials sued in their personal capacities, unlike those sued in their official capacities, may assert personal immunity defenses such as objectively reasonable reliance on existing law.” Pena v. Gardner, 976 F.2d 469, 473 (9th Cir.1992) (quoting Graham, 473 U.S. at 166-167, 105 S.Ct. 3099). Individuals are not immune under the doctrine of qualified immunity if they violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v." }, { "docid": "20320188", "title": "", "text": "can.be executed only against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself. Graham, 473 U.S. at 165-166, 105 S.Ct. at 3105 (footnote omitted); see also Hafer v. Melo, 502 U.S. 21, 23-27, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991) (“Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, ‘the entity’s ‘policy or custom’ must have played a part in the violation of federal law”’) (quoting Graham quoting Monell). In Graham, the Supreme Court also noted that there is no longer a need to bring official capacity suits against local government officials because under Monell local government units can be sued directly for damages and injunctive or declaratory relief. Graham, 473 U.S. at 166 n. 14, 105 S.Ct. at 3106 n. 14. In this case, HHC was, in fact, named as a defendant. In Graham, the Court instructed that the course of the proceedings will typically indicate the nature of the liability — personal or official — sought to be imposed on an individual. Although defendant Weigand was named as a defendant in both his personal and official capacities, the jury’s verdict demonstrates that he was found to be liable only in his personal capacity. In Graham, the court explained that in order for an individual to be liable in his or her official capacity under § 1983, the liability of the municipality must be established under Monell: On the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right. See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). More is required in an official-capacity action, however, for a governmental entity is liable under § 1983 only when the entity itself is a “‘moving force’” behind the deprivation, Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981) (quoting Monell, supra," }, { "docid": "12469796", "title": "", "text": "DECISION AND ORDER WILLIAM E. SMITH, District Judge. In this case, twin boys through their mother Molly Raymond have sued a social worker and supervisor of the Rhode Island Department of Children, Youth, and Families (“DCYF”). They claim the DCYP employees were negligent and, under 42 U.S.C. § 1983, violated their substantive due process rights by failing to remove them from a foster home in which they were (allegedly) abused. After six days of trial before a jury, at the close of Plaintiffs’ case, the Court granted Defendants’ motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a). This decision explains in detail the Court’s reasons for granting the motion. I. Procedural History Some discussion of the travel of this case is helpful in order to understand its lengthy gestation, and to explain why the qualified immunity defense was not addressed earlier. Qualified immunity is, after all, immunity from suit, not a “mere defense to liability” and in the usual course is decided before trial. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Plaintiffs originally brought a negligence action against Defendants in Rhode Island Superior Court in 2001. Years of sporadic activity followed and on or about April 3, 2008, Plaintiffs amended their complaint to allege a violation of 42 U.S.C. § 1983. After defending in state court for seven years without reaching trial, Defendants seized the opportunity to remove the case to this Court once it presented a federal question under 28 U.S.C. § 1331. Defendants deliberately (and understandably) chose not to press the qualified immunity defense until the Rule 50 stage, because a favorable decision might result in remand of the negligence claims to state court, thus delaying final resolution. II. Plaintiffs’ Fourth Amended Complaint On the first day of trial, the Court inquired whether the § 1983 claims were against the DCYF employees in their individual capacities, official capacities, or both, because the Complaint was unclear. Plaintiffs’ counsel responded that Defendants were named in their" }, { "docid": "23586166", "title": "", "text": "individual capacities based on its conclusion that the applicability of Title II of the ADA and § 504 of the Rehabilitation Act to the transportation of an arrestee was not clearly established at the time of Gorman's arrest. Gorman concedes on appeal that defendants Bartch, Boley, Daniels, and Rails are not subject to liability in their individual capacities because they assumed their positions after the events giving rise to his claims and they were therefore sued only in their official capacities. He argues that the district court erred in dismissing the individual capacity claims against the remaining defendants, however, because the applicability of the statutes to his transportation was clearly established. The defendants argue in response that their conduct did not violate clearly established rights under the statutes. We review de novo the decision granting qualified immunity. Rowe v. Lamb, 130 F.3d 812, 814 (8th Cir.1997). Claims against government actors in their individual capacities differ from those in their official capacities as to the type of conduct that is actionable and as to the type of defense that is available. See Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). Claims against individuals in their official capacities are equivalent to claims against the entity for which they work; they require proof that a policy or custom of the entity violated the plaintiff's rights, and the only type of immunity available is one belonging to the entity itself. Id., 502 U.S. at 24-27, 112 S.Ct. at 361-62 (1991). Personal capacity claims, on the other hand, are those which allege personal liability for individual actions by officials in the course of their duties; these claims do not require proof of any policy and qualified immunity may be raised as a defense. Id., 502 U.S. at 25-27, 112 S.Ct. at 362. The defense of qualified immunity gives government officials engaged in discretionary activities immunity from liability unless their conduct violates \"clearly established statutory or constitutional rights.\" Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The availability of the defense should ordinarily be resolved" }, { "docid": "12469797", "title": "", "text": "S.Ct. 2806, 86 L.Ed.2d 411 (1985); Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Plaintiffs originally brought a negligence action against Defendants in Rhode Island Superior Court in 2001. Years of sporadic activity followed and on or about April 3, 2008, Plaintiffs amended their complaint to allege a violation of 42 U.S.C. § 1983. After defending in state court for seven years without reaching trial, Defendants seized the opportunity to remove the case to this Court once it presented a federal question under 28 U.S.C. § 1331. Defendants deliberately (and understandably) chose not to press the qualified immunity defense until the Rule 50 stage, because a favorable decision might result in remand of the negligence claims to state court, thus delaying final resolution. II. Plaintiffs’ Fourth Amended Complaint On the first day of trial, the Court inquired whether the § 1983 claims were against the DCYF employees in their individual capacities, official capacities, or both, because the Complaint was unclear. Plaintiffs’ counsel responded that Defendants were named in their official capacities as social worker and supervisor. While the § 1983 claim is further discussed infra, the reason for the Court’s inquiry was that except for an Ex parte Young claim for prospective, injunctive relief (inapplicable here), a § 1983 claim against a state actor in her official capacity is treated as a suit against the government entity where she works. 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Kentucky v. Graham, 473 U.S. 159, 165-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 71 (1st Cir.2002). And, because Rhode Island and its agencies are not “persons” under § 1983, Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), official capacity claims are not a viable theory for § 1983 money damages. Any discernable claim for money damages out of official capacity liability against DCYF employees would ordinarily be dismissed because DCYF, as an arm of the State, is entitled to Eleventh Amendment sovereign immunity. See Pennhurst" }, { "docid": "10690483", "title": "", "text": "individual in her official capacity is tantamount to a claim against the employer and that where, as here, the employer is also sued, the official-capacity suit against the employee is simply redundant and may be dismissed. Cf. Johnson v. Wash. County Career Ctr., No. 2:10-CV-076, 2010 WL 2570929 (S.D.Ohio June 22, 2010) (dismissing official-capacity Rehabilitation Act and ADA claims against an individual where the state-entity employer was also named as a defendant) (citing Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (“[T]he real party in interest in an official-capacity suit is the government entity itself and not the named official.”); Von Herbert v. City of St. Clair Shores, 61 Fed.Appx. 133, 140 (6th Cir.2003) (dismissing official-capacity claim as redundant and subsumed by claim against the government entity)). Defendants have not voiced any opposition to this argument. The motion to dismiss the official-capacity claims against Weidenbenner will therefore be granted. (2) Count III of the Complaint— Alleged Violation of Parental Rights It is well established that parents have a liberty interest in the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (referring to this interest as “perhaps the oldest of the fundamental liberty interests recognized by th[e Supreme] Court”); see also Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (holding the Fourteenth Amendment prohibits “unreasonably interfering] with the liberty of parents and guardians to direct the upbringing and education of children under their control”); Barrett v. Steubenville City Schs., 388 F.3d 967, 972 (6th Cir.2004) (noting the fundamental right of parents to raise their child, and to direct their child’s education, has been clearly established). It appears equally clear, however, that where there is neither a loss of custody nor any separation between the parents and the child, there is no constitutional violation. Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 590-91 (6th Cir.2008). Plaintiffs argue that their association with their child is “already fragile at best” in light of the child’s" }, { "docid": "2268553", "title": "", "text": "had tried to commit suicide in the past and that Paulding County Deputies had taken him to the hospital on that previous occasion. . Plaintiffs have introduced evidence which tends to refute Defendants' statements that the Hospital would not take decedent in his intoxicated state. Plaintiffs filed an objection to certain parts of Deputies Tom Murphy and Mike Hicks’s affidavits which relate their knowledge of this alleged hospital policy. Contrary to Plaintiffs’ argument, and as Defendants point out, the statements in the affidavit are not hearsay as they are not rendered for proving the existence of the policy, instead, they are introduced to show the deputies belief that such a policy existed. Consequently, Plaintiffs’ objections to those portions of the affidavits are without merit. .Plaintiffs have introduced testimony that Sheriff Grogan did not give specific instructions as to the care Merideth was to receive while staying in the Paulding County jail. . This granting of summary judgment also applies to the Fourth Amendment claims against the County and the official capacity suits against the individuals as Plaintiffs have not pointed to any custom or policy of the County or a decision by the final policy maker to infringe upon Decedent's Fourth Amendment rights. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986); Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978); Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1480 (11th Cir.1991). . Although Plaintiffs have named all the individual Defendants as being sued individually and in their official capacity, the real target of the official capacity suit is Paulding County. \"Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, the entity’s policy or custom must have played a part in the violation of federal law [or the Constitution].\" Hafer v. Milo, 502 U.S. -, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301, 309 (1991) (citation omitted). Consequently, this Court will consider all the allegations relating to the official capacity suits against" } ]

[ { "docid": "22399010", "title": "", "text": "conducted pursuant to a warrant in order to be reasonable under the Fourth Amendment, legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment. See, e. g., United States v. Biswell, 406 U. S. 311 (1972); Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970). The greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections. United States v. Biswell, supra, at 316. The interest of the owner of commercial property is not one in being free from any inspections. Congress has broad authority to regulate commercial enterprises engaged in or affecting interstate commerce, and an inspection program may in some cases be a necessary component of federal regulation. Rather, the Fourth Amendment protects the interest of the owner of property in being free from unreasonable intrusions onto his property by agents of the government. Inspections of commercial property may be unreasonable if they are not authorized by law or are unnecessary for the furtherance of federal interests. Colonnade Catering Corp. v. United States, supra, at 77. Similarly, warrantless inspections of commercial property may be constitutionally objectionable if their occurrence is so random, infrequent, or unpredictable that the owner, for all practical purposes, has no real expectation that his property will from time to time be inspected by government officials. Marshall v. Barlow’s, Inc., supra, at 323. “Where Congress has authorized inspection but made no rules governing the procedures that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.” Colonnade Corp. v. United States, supra, at 77. In such cases, a warrant may be necessary to protect the owner from the “unbridled discretion [of] executive and administrative officers,” Marshall v. Barlow’s, Inc., supra, at 323, by assuring him that “reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect" } ]

[ { "docid": "8611887", "title": "", "text": "the field is important to the determination that searches conducted pursuant to the policy are reasonable under the Fourth Amendment. Duvall and McElroy’s beliefs about their authority suggest that the goal of channeling their discretion has not been achieved. However, although the text of the Kentucky policy itself provides less guidance than the regulation upheld in Griffin, we believe the apparent incorporation of federal case law is sufficient to make the policy constitutional. Duvall and McElroy’s misconceptions reflect flaws not in the policy itself but in their own understanding of it. Because the Kentucky policy is sufficiently specific and adopts a standard that is at least as demanding as the standard upheld in Griffin, it is constitutional. 2. Exclusionary Rule The parties have assumed throughout that if the officers lacked reasonable suspicion for the search, the fruits of the search must be suppressed. We agree. In general, a violation of a more restrictive state law does not require suppression in a federal proceeding, see United States v. Wright, 16 F.3d 1429, 1437 (6th Cir.1994), but in this case a violation of the state policy would also be a violation of the Fourth Amendment. The search in Griffin was constitutional “because it was carried out pursuant to a regulation that itself satisfie[d] the Fourth Amendment’s reasonableness requirement.” Griffin, 483 U.S. at 873, 107 S.Ct. 3164. In the context of the special needs of the parole system, the presence of a reasonable regulatory scheme can make a search upon less than probable cause “reasonable” for purposes of the Fourth Amendment. See id. at 873, 107 S.Ct. 3164 (noting “that in certain circumstances government investigators ' conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet ‘reasonable legislative or administrative standards’ ”) (quoting Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)); see also Nevo York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (upholding a statute authorizing warrantless administrative searches of vehicle dismantling businesses); Donovan v. Dewey, 452 U.S." }, { "docid": "5047754", "title": "", "text": "arguments to be unpersuasive. The Fourth Amendment’s prohibition against unreasonable searches and seizures applies to administrative searches of commercial premises such as Como’s that are designed to enforce regulatory schemes such as municipal health and budding codes. New York v. Burger, 482 U.S. 691, 699-700, 107 S.Ct. 2636, 2642-43, 96 L.Ed.2d 601 (1987); see also Lesser v. Espy, 34 F.3d 1301, 1305 (7th Cir.1994). Nevertheless, it has long been recognized that the expectation of privacy concerning commercial premises held by the owner of a “closely regulated” business is an attenuated one. Burger, 482 U.S. at 700-01, 107 S.Ct. at 2642-43 (junkyard industry); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (liquor industry); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (pawnshop licensed to sell firearms); Lesser, 34 F.3d at 1305 (rabbit breeding). The food industry has long been held to be such a closely regulated industry, see, e.g., United States v. New England Grocers Supply Co., 488 F.Supp. 230 (D.Mass.1980); United States v. Acri Wholesale Grocery Co., 409 F.Supp. 529 (S.D.Iowa 1976), and Clark does not argue to the contrary. In Burger, the Court explained that in view of the diminished privacy expectations of the owner or operator of closely regulated commercial premises, “the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search ... have lessened application in this context[,]” and “as in other situations of ‘special need,’ ... a warrantless inspection of commercial premises may well be reasonable within the Fourth Amendment.” 482 U.S. at 702, 107 S.Ct. at 2643-44. The Court proceeded to set out three criteria that must be met in order for a warrantless inspection pursuant to a regulatory scheme to be reasonable: (1) “there must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made”; (2) “the warrantless inspections must be ‘necessary to further [the] regulatory scheme’ ”; and (3) the regulatory inspection program “[must] provid[e] a constitutionally adequate substitute for a warrant.” Id. at 702-03," }, { "docid": "17661507", "title": "", "text": "to the contrary. See Terry, 392 U.S. at 20, 88 S.Ct. at 1879; Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987) (search of probationer’s home without warrant or probable cause allowed because regulation requiring reasonable grounds for search satisfied Fourth Amendment); O'Connor v. Ortega, 480 U.S. 709, 722-23, 107 S.Ct. 1492, 1500, 94 L.Ed.2d 714 (1987) (no warrant or probable cause required for search of public employee's office; search need only be reasonable); New Jersey v. T.L.O., 469 U.S. 325, 340-41, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985) (T.L.O.) (warrant and probable cause not necessary for search of school children for contraband); United States v. Martinez-Fuerte, 428 U.S. 543, 561-62, 96 S.Ct. 3074, 3084-85, 49 L.Ed.2d 1116 (1976) (authorizing stop of vehicles at fixed checkpoint away from the border with Mexico and brief questioning of occupants even in the absence of any individualized suspicion that the vehicle contains illegal aliens); United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975) (Border Patrol may stop vehicles briefly and ask occupants about their citizenship, immigration status, and any suspicious circumstances without warrant or probable cause if they have articula-ble suspicion); see also Camara v. Municipal Court, 387 U.S. 523, 534-35, 87 S.Ct. 1727, 1734, 18 L.Ed.2d 930 (1967) (housing code inspections may be made pursuant to area warrant not based on individualized probable cause). Reasonableness, not probable cause, is undoubtedly the touchstone of the Fourth Amendment. As the Supreme Court has explained, \" 'probable cause’ is not an irreducible requirement of a valid search. The fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although ‘both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, ... in certain limited circumstances neither is required.’ \" T.L.O., 469 U.S. at 340, 105 S.Ct. at 742, quoting Almeida-Sanchez v. United States, 413 U.S. 266, 277, 93 S.Ct. 2535, 2541, 37 L.Ed.2d 596 (1973) (Powell, J., concurring). Judge Reinhardt suggests that even if a foreign search need not" }, { "docid": "8611889", "title": "", "text": "594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (upholding'warrantless mine inspections). A search not authorized by the regulatory scheme is unreasonable unless it independently satisfies traditional Fourth Amendment requirements. Cf. Colonnade Catering Corp. v. United States, 397 U.S. 72, 77, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (“Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.”). The “special needs”’ of the parole system would likely affect those requirements even in the absence of a regulatory scheme. See Griffin, 483 U.S. at 873-75, 107 S.Ct. 3164 (discuss ing the special needs of a probation system); see also O’Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (holding that government employers may search employees’ offices without probable cause); New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (holding that public school officials may search students upon reasonable suspicion rather than probable cause). However, we would at minimum require that a search conducted without statutory authorization meet the federal standard of reasonable suspicion, which in this ease is equivalent to the state-law standard. Thus, if the search in this case was not based on a reasonable suspicion, then it violated both Kentucky law and the Fourth Amendment. We also believe that application of the exclusionary rule is appropriate in these circumstances. There are some contexts in which the deterrence value of the exclusionary rule is too slight to require that evidence obtained1 in violation of the Fourth Amendment be suppressed. We have held that the nature of the proceeding is the most important factor in determining whether the exclusionary rule should apply. See Wolf v. Commissioner, 13 F.3d 189, 194 (6th Cir.1993). In Wolf, we held that the deterrence effect was too attenuated to justify applying the exclusionary rule in a civil tax proceeding, when the evidence in question was obtained through a criminal investigation of drug activity. Criminal proceedings are, of course, the realm in which the exclusionary rule is strongest. See id. at 193 (noting that" }, { "docid": "15917356", "title": "", "text": "the regulations promulgated therefrom, provide sufficient statutory authority to conduct the challenged search, so long as the scheme passes constitutional muster and the search does not otherwise violate the Fourth Amendment. 2. Constitutionality of the Regulatory Scheme Plaintiffs contend that the search violated their right to be free from unreasonable searches and seizures, under the Fourth Amendment. See U.S. Const, amend. IV. The Fourth Amendment protects against unreasonable searches of commercial premises. See New York v. Burger, 482 U.S. 691, 699, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). In general, a state actor must obtain a warrant based on probable cause to lawfully execute a search. See id.; Camara v. Mun. Court of the City and County of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Under certain circumstances, however, the Fourth Amendment permits warrantless administrative searches of commercial property. See Donovan v. Dewey, 452 U.S. 594, 598-99, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981). The greater latitude to conduct warrant-less inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual’s home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections. Id. at 599, 101 S.Ct. 2534 (citing United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972)). In closely regulated industries, for example, warrantless administrative searches of commercial premises conducted pursuant to a regulatory scheme are constitutionally permitted if they meet three criteria: First, there must be a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made.... Second, the warrantless inspections must be “necessary to further [the] regulatory scheme.” Donovan v. Dewey, 452 U.S., at 600, 101 S.Ct. 2534. For example, in Dewey, we recognized that forcing mine inspectors to obtain a warrant before every inspection might alert mine owners or operators to the impending inspection, thereby frustrating the purposes of the Mine Safety and Health Act — to detect and thus to deter" }, { "docid": "15155795", "title": "", "text": "of evidence within the residence; (3) a threatened and potentially successful escape by a suspect from inside the residence; or (4) an imminent threat to the life or safety of members of the public, the police officers, or a person located within the residence. See United States v. Tibolt, 72 F.3d 965, 969 (1st Cir.1995); Hegarty, 53 F.3d at 1374. Normally, “exigent circumstances” exceptions — by them very nature — turn upon the objective reasonableness of ad hoc, fact-specific assessments contemporaneously made by government agents in light of the developing circumstances at the scene of the search. See id. at 1378. Second, a residential search pursuant to an established warrantless search procedure may be reasonable if conducted in furtherance of an important administrative or regulatory purpose, or “special need,” which would be undermined systemically by an impracticable warrant or probable-cause requirement. Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987) (“[W]e have permitted exceptions when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ ”) (citation omitted). See, e.g., id. (upholding probation officers’ prerogative to conduct warrantless searches of probationers’ homes for evidence of probation infraction); O’Connor, 480 U.S. at 709, 107 S.Ct. at 1492 (noting that government employer’s warrantless searches of employees’ work space to recover work-related materials may be “reasonable” in particular circumstances); T.L.O., 469 U.S. at 325, 105 S.Ct. at 733 (holding that war-rantless in-school searches of students’ personal property by public school officials did not violate Fourth Amendment); United States v. Cardona, 903 F.2d 60 (1st Cir.1990) (extending Griffin to parole officers’ warrantless searches of parolees’ residences), cert. denied, 498 U.S. 1049, 111 S.Ct. 758, 112 L.Ed.2d 778 (1991); cf. Wyman, 400 U.S. at 309, 91 S.Ct. at 381 (holding that social worker’s warrantless visitation to welfare recipient’s home did not implicate Fourth Amendment). The reasonableness of a particular “special need” search procedure will depend, of course, on whether the court’s “careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard that stops" }, { "docid": "19643344", "title": "", "text": "then there is probable cause to issue a suitably restricted search warrant.\" Id.,at 539, 87 S.Ct. 1727. And precisely \"because the ultimate touchstone of the Fourth Amendment is 'reasonableness,' \" even the presumption that the search of a home without a warrant is unreasonable \"is subject to certain exceptions.\" Brigham City v. Stuart,547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). One exception to normal warrant requirements applies to searches of closely regulated businesses. \"[W]hen an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation,\" and so a warrantless search to enforce those regulations is not unreasonable. Marshall v. Barlow's, Inc.,436 U.S. 307, 313, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Recognizing that warrantless searches of closely regulated businesses may nevertheless becomeunreasonable if arbitrarily conducted, we have required laws authorizing such searches to satisfy three criteria: (1) There must be a \" 'substantial' government interest that informs the regulatory scheme pursuant to which the inspection is made\"; (2) \"the warrantless inspections must be 'necessary to further [the] regulatory scheme' \"; and (3) \" 'the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.' \" New York v. Burger,482 U.S. 691, 702-703, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). Los Angeles's ordinance easily meets these standards. A In determining whether a business is closely regulated, this Court has looked to factors including the duration of the regulatory tradition, id.,at 705-707, 107 S.Ct. 2636Colonnade Catering Corp. v. United States,397 U.S. 72, 75-77, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), Donovan v. Dewey,452 U.S. 594, 606, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981); the comprehensiveness of the regulatory regime, Burger, supra,at 704-705, 107 S.Ct. 2636Dewey, supra,at 606, 101 S.Ct. 2534; and the imposition of similar regulations by other jurisdictions, Burger, supra,at 705, 107 S.Ct. 2636. These factors are not talismans, but shed light on the expectation of privacy the owner of a business may reasonably have, which in turn affects the reasonableness of a warrantless search. See" }, { "docid": "9743690", "title": "", "text": "438 N.Y.S,2d 257, 420 N.E.2d 55 (1981) (prohibiting the warrantless inspection of residential rental property to check on health conditions). However, “searches pursuant to a regulatory scheme need not adhere to the usual requirements” where special governmental needs are present. Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).' Thus, “in limited circumstances, a search unsupported by either [a] warrant or probable cause can be constitutional,” but only where “ ‘special needs’ other than the normal need for law enforcement provide sufficient justification.” Ferguson v. City of Charleston, 532 U.S. 67, 76 n. 7, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001). Moreover, the Supreme Court has observed that, typically, such “special needs” will be recognized only where “the usual warrant or probable-cause requirements” have somehow been rendered impracticable. See Griffin, 483 U.S. at 873. Warrantless searches have regularly been allowed when they were conducted pursuant to some legislated regulatory scheme in situations in which there was found to exist a diminished expectation of privacy. The special needs doctrine, in particular, has been applied in a number of cases involving the residences of parolees or probationers. See Griffin, 483 U.S. at 870 (1987); Moore v. Vega, 371 F.3d 110, 113 (2d Cir.2004). Application of the special needs doctrine, however, has not been limited to the heartland of cases in which the doctrine has its genesis. For example, in New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), the Supreme Court held: Because the owner or operator of commercial premises in a closely regulated industry has a reduced expectation of privacy, the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search, have lessened application in this context. Rather, we conclude that, as in other situations of special need, where the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment. Id. at 702, 107 S.Ct. 2636 (citations and internal" }, { "docid": "17144232", "title": "", "text": "not a home visit. The question, therefore, is whether the search was lawful under the Fourth Amendment. A parolee or a probationer does not generally surrender his Fourth Amendment right to be secure from unreasonable searches and seizures. See Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987) (probationer’s home protected by Fourth Amendment); United States v. Grimes, 225 F.3d 254, 258 (2d Cir.2000) (applying Griffin to parolees). Moreover, as the district court in Giimes noted, a parolee’s status is relevant to the evaluation of what is a reasonable search. See United States v. Grimes, 67 F.Supp.2d 170, 175 (W.D.N.Y.1999). That is, a search that is unreasonable with respect to an individual not on parole may be reasonable with respect to an individual who is. See id. In most situations, a search may only be undertaken pursuant to a warrant supported by probable cause. See Griffin, 483 U.S. at 873, 107 S.Ct. at 3168. However, the Supreme Court has permitted exceptions when “special needs” beyond the normal need for law enforcement make the warrant and probable cause requirement impractical. Id. One of these exceptions is for a state’s operation of its probation or parole system. See id. (probation system); Grimes, 225 F.3d at 258 (applying Griffin to parole system). “As a result, probationers [and parolees] may be subject to ‘a degree of impingement upon privacy that would not be constitutional if applied to the public at large.’ ” Id. (quoting Griffin, 483 U.S. at 875,107 S.Ct. at 3169). To guarantee a parolee’s somewhat diminished Fourth Amendment rights, these impingements must occur “pursuant to a regulation that itself satisfies the Fourth Amendment’s reasonableness requirement.” Griffin, 483 U.S. at 873, 107 S.Ct. at 3168. This formulation is an extension of the doctrine regarding warrant-less administrative searches, in which “government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet ‘reasonable legislative or administrative standards.’ ” Id. (quoting Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930" }, { "docid": "3202816", "title": "", "text": "still required in such an instance, but an administrative warrant may suffice). However, there are “a few well recognized exceptions” to the Fourth Amendment’s warrant requirement, Showers, 182 F.3d at 172, one of which is for searches that fall under the administrative search doctrine. See New York v. Burger, 482 U.S. 691, 701, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). The administrative search doctrine provides that for commercial enterprises operating in “closely regulated” industries, “where the privacy interests of the owner are weakened and the government interests in regulating [the] particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment.” Id. at 702, 107 S.Ct. 2636. To determine if such a search is reasonable, a court considers three factors: (1) whether there is a “substantial” government interest that informs the regulatory scheme; (2) whether the warrantless inspections are “necessary to further [the] regulatory scheme”; and (3) whether “the statute’s inspection program, in terms of the certainty and regulatory of its application, provides a constitutionally adequate substitute for a warrant.” Burger, 482 U.S. at 702-03, 107 S.Ct. 2636 (internal quotation marks and citations omitted). The government has the burden of demonstrating a warrantless search is permissible under an exception to the Fourth Amendment’s warrant requirement. United States v. Herrold, 962 F.2d 1131, 1137 (3d Cir.1992). Turning to the present case, the Court concludes “producers” of sexually explicit depictions as defined by Sections 2257 and 2257A constitute a “closely regulated” industry for the purposes of the administrative search doctrine. A “closely regulated” industry is one that has been “long subject to close supervision and inspection,” such that the privacy expectations of businesses in the sector are reduced. Colonnade Catering Corp. v. United States, 397 U.S. 72, 77, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); see also Lovgren v. Byrne, 787 F.2d 857, 865-66 (3d Cir.1986). To date, courts have recognized mine operators, Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981); liquor sellers, Colonnade, 397 U.S. at 74, 90 S.Ct. 774; firearms dealers, United States v." }, { "docid": "22825145", "title": "", "text": "the warrantless search of that apartment rendered the search and seizure constitutionally unreasonable. We review de novo the legal issues presented by a motion to suppress. See United States v. Casado, 303 F.3d at 443. 1. Warrantless Parole Searches The Fourth Amendment protects the right of private citizens to be free from unreasonable government intrusions into areas where they have a legitimate expectation of privacy. See U.S. Const. amend. IV; Kyllo v. United States, 533 U.S. 27, 33-34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). Although warrantless searches are generally presumed unreasonable, the law recognizes certain exceptions to this rule. Notably, in Griffin v. Wisconsin, the Supreme Court ruled that “[a] State’s operation of a probation system ... presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.” 483 U.S. 868, 873-74, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). Relying on the “special needs” exception articulated in Griffin, this court has ruled that the operation of a parole system also presents special needs justifying a departure from the traditional Fourth Amendment warrant requirement. As we said in United States v. Chimes, quoting the First Circuit, “ ‘[p]a-role is meted out in addition to, not in lieu of, incarceration ..ergo, parolees enjoy even less of the average citizen’s absolute liberty than do probationers.’ ” 225 F.3d 254, 258 (2d Cir.2000) (per curiam) (quoting United States v. Cardona, 903 F.2d 60, 63 (1st Cir.1990)); see also United States v. Reyes, 283 F.3d 446, 461 (2d Cir.2002) (holding special needs exception to apply to federal supervised release). Although probationers and parolees are subject to “a degree of impingement upon privacy that would not be constitutional if applied to the public at large,” Griffin v. Wisconsin, 483 U.S. at 875, 107 S.Ct. 3164, the law requires that such greater intrusions occur pursuant to a rule or regulation “that itself satisfies the Fourth Amendment’s reasonableness requirement,” id. at 873, 107 S.Ct. 3164. In this case, the district court carefully reviewed New York State parole policies and regulations as well as pertinent state decisional law and concluded that" }, { "docid": "17144233", "title": "", "text": "law enforcement make the warrant and probable cause requirement impractical. Id. One of these exceptions is for a state’s operation of its probation or parole system. See id. (probation system); Grimes, 225 F.3d at 258 (applying Griffin to parole system). “As a result, probationers [and parolees] may be subject to ‘a degree of impingement upon privacy that would not be constitutional if applied to the public at large.’ ” Id. (quoting Griffin, 483 U.S. at 875,107 S.Ct. at 3169). To guarantee a parolee’s somewhat diminished Fourth Amendment rights, these impingements must occur “pursuant to a regulation that itself satisfies the Fourth Amendment’s reasonableness requirement.” Griffin, 483 U.S. at 873, 107 S.Ct. at 3168. This formulation is an extension of the doctrine regarding warrant-less administrative searches, in which “government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet ‘reasonable legislative or administrative standards.’ ” Id. (quoting Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930 (1967)). Applying this standard to the case at bar therefore requires a determination of whether the regulations under which Newton’s mother’s apartment was searched satisfy the Fourth Amendment’s reasonableness requirement, and whether that search was conducted pursuant to those regulations. This seemingly straightforward analysis is complicated by a preliminary question: what are the applicable “regulations”? As Newton was a parolee with the New York State Division of Parole, state law must provide the appropriate search regulations. There are three possibilities. First, the search may have been conducted pursuant to the New York State Division of Parole’s Policy and Procedures Manual (“Manual”). See July 23, 2001 Hr’g Ex. B. Item 9405.04 of the Manual provides guidelines for home visits, searches, and seizures of parolees by parole officers. See id. Section II of Item 9405.04 specifically provides guidelines for warrantless searches of parolees. See id. Under Section II.A: A parole officer may search a releasee for evidence of a crime or evidence of a violation of any of the releasee’s conditions of parole where the officer has" }, { "docid": "19766679", "title": "", "text": "the Court reasoned that a warrant was not necessary for a lawful search. Thus, the District Court concluded that the Plaintiffs had not stated a claim upon which relief could be granted. Generally, a search or seizure must be carried out pursuant to a warrant to be considered reasonable under the Fourth Amendment. See, e.g., Shoemaker v. Handel, 795 F.2d 1136, 1142 (3d Cir.1986). In New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), however, the Supreme Court explained that the “expectation of privacy in commercial premises ... is different from, and indeed less than, a similar expectation in an individual’s home. This expectation is particularly attenuated in property in ‘closely regulated’ industries.” Id. at 700, 107 S.Ct. 2636 (internal citation omitted). Thus, the closely regulated industry exception to the warrant requirement, based on Colonnade Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), provides that “[b]eeause the owner or operator of commercial premises in a ‘closely regulated’ industry has a reduced expectation of privacy, the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search, have lessened application in this context.” Burger, 482 U.S. at 702, 107 S.Ct. 2636 (internal citation omitted). However, we have emphasized that “the regulated industries exception is a narrow one, and ... a warrantless search can be placed within that exception only if it is in fact made pursuant to and in enforcement of the regulatory scheme.” United States v. Shaefer, Michael & Clair- ton Slag, Inc., 637 F.2d 200, 204 (3d Cir.1980). The warrantless inspection of a heavily regulated business will be deemed reasonable only if three criteria are met: (1) “there must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made,” (2) “the warrantless inspections must be ‘necessary to further [the] regulatory scheme,’ ” and (3) “ ‘the statute’s inspection program, in terms of the certainty and regularity of its application, [must]" }, { "docid": "21685757", "title": "", "text": "provides: A search of a type not otherwise included in this rule and not requiring probable cause under Mil.R.Evid. 315 may be conducted when permissible under the Constitution of the United States as applied to the members of the armed forces.[ ] In Griffin v. Wisconsin, the United States Supreme Court ruled that the warrantless search of a probationer’s home pursuant to the rules and regulations of the Wisconsin State Department of Health and Social Services satisfied the demands of the Fourth Amendment because the search was “carried out pursuant to a regulation that itself satisfies the Fourth Amendment’s reasonableness requirement under well established principles.” Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 3167, 97 L.Ed.2d 709 (1987). In affirming Griffin’s conviction for possession of a firearm by a convicted felon, the Supreme Court refused to suppress the evidence seized during a warrantless search of the Griffin’s home stating: Although we usually require that a search be undertaken only pursuant to a warrant (and thus supported by probable cause, as the Constitution says warrants must be), see, e.g., Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980), we have permitted exceptions when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 749, 83 L.Ed.2d 720 (1985). Griffin v. Wisconsin, 107 S.Ct. at 3167. The Court concluded that “it [is] clear that the special needs of Wisconsin’s probation system make the warrant requirement impracticable and justify replacement of the standard of probable cause by ‘reasonable cause.’ ” Id. at 3169. In New York v. Burger, the United States Supreme Court ruled that warrant-less administrative inspections of closely regulated commercial enterprises will be deemed reasonable for Fourth Amendment purposes whenever a substantial governmental interest necessitates a warrantless inspection and the regulatory scheme provides an adequate substitute for a warrant. New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 2643-44, 96 L.Ed.2d 601 (1987). A warrantless inspection will be deemed to be reasonable so long as three" }, { "docid": "3202815", "title": "", "text": "Jones test for a Fourth Amendment search. To deny that these inspections were searches is like denying that American cheese is cheese, ii. Whether the Inspections Authorized by the Statutes Satisfy the “Administrative Search” Exception The next question before the Court on remand is, given that the inspections authorized by the Statutes implicate the Fourth Amendment, whether they satisfy the “administrative search” exception to the warrant requirement. The Fourth Amendment’s Warrant Clause, providing that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,” obligates the government to obtain a warrant before undertaking a search. U.S. Const. Amend TV; see also Showers v. Spangler, 182 F.3d 165, 172 (3d Cir.1999) (holding that “Fourth Amendment protections require law enforcement officers to procure and execute a warrant before conducting a search”). This is true for all searches that implicate the Fourth Amendment, including those made to ensure a party is complying with a regulatory mandate. Camara v. Mun. Court, 387 U.S. 523, 535-39, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (holding a warrant is still required in such an instance, but an administrative warrant may suffice). However, there are “a few well recognized exceptions” to the Fourth Amendment’s warrant requirement, Showers, 182 F.3d at 172, one of which is for searches that fall under the administrative search doctrine. See New York v. Burger, 482 U.S. 691, 701, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). The administrative search doctrine provides that for commercial enterprises operating in “closely regulated” industries, “where the privacy interests of the owner are weakened and the government interests in regulating [the] particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment.” Id. at 702, 107 S.Ct. 2636. To determine if such a search is reasonable, a court considers three factors: (1) whether there is a “substantial” government interest that informs the regulatory scheme; (2) whether the warrantless inspections are “necessary to further [the] regulatory scheme”; and (3) whether “the statute’s inspection program, in terms of the certainty and regulatory of its application, provides a" }, { "docid": "13971484", "title": "", "text": "other significant governmental interest in the form of “special needs beyond normal law enforcement,” even if those “special needs” are not tied directly to institutional concerns. In this regard, Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), provides a helpful analogy. In Griffin, the Supreme Court reviewed a Wisconsin Department of Health and Social Services (“DHSS”) regulation that permitted a warrantless search of a probationer’s home if there existed “reasonable grounds” to believe that the probationer possessed contraband, including items he was prohibited from possessing under the conditions of his probation. See Id. at 870-71, 107 S.Ct. 3164. The Court observed that “[a] State’s operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, likewise presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements” and that “in certain circumstances government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet ‘reasonable legislative or administrative standards.’” Id. at 873-74, 107 S.Ct. 3164 (quoting Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). The Court upheld the search of Griffin’s home, without regard to whether the information on which the probation officer initiated the search satisfied a federal “reasonable grounds” standard, because the regulation authorizing the search was itself sufficient to satisfy the Fourth Amendment’s reasonableness requirement. See id. at 872-73, 107 S.Ct. 3164. Griffin, as a probationer committed to the legal custody of the DHSS, was subject to a range of restrictions “meant to assure that the probation serve[d] as a period of genuine rehabilitation and that the community [was] not harmed by [his] being at large.” Id. at 875, 107 S.Ct. 3164. Relying on research that indicated that more intensive supervision of probationers reduced recidivism, the Court concluded that supervision was a “‘special need’ of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public" }, { "docid": "8611888", "title": "", "text": "in this case a violation of the state policy would also be a violation of the Fourth Amendment. The search in Griffin was constitutional “because it was carried out pursuant to a regulation that itself satisfie[d] the Fourth Amendment’s reasonableness requirement.” Griffin, 483 U.S. at 873, 107 S.Ct. 3164. In the context of the special needs of the parole system, the presence of a reasonable regulatory scheme can make a search upon less than probable cause “reasonable” for purposes of the Fourth Amendment. See id. at 873, 107 S.Ct. 3164 (noting “that in certain circumstances government investigators ' conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet ‘reasonable legislative or administrative standards’ ”) (quoting Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)); see also Nevo York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (upholding a statute authorizing warrantless administrative searches of vehicle dismantling businesses); Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (upholding'warrantless mine inspections). A search not authorized by the regulatory scheme is unreasonable unless it independently satisfies traditional Fourth Amendment requirements. Cf. Colonnade Catering Corp. v. United States, 397 U.S. 72, 77, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (“Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.”). The “special needs”’ of the parole system would likely affect those requirements even in the absence of a regulatory scheme. See Griffin, 483 U.S. at 873-75, 107 S.Ct. 3164 (discuss ing the special needs of a probation system); see also O’Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (holding that government employers may search employees’ offices without probable cause); New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (holding that public school officials may search students upon reasonable suspicion rather than probable cause). However, we would at minimum require that a search conducted" }, { "docid": "16220826", "title": "", "text": "Payne, 181 F.3d at 781, 786 (6th Cir.1999). When, as here, the District Court has denied a motion to suppress, “we review all evidence in a light most favorable to the Government.” United States v. Galloway, 316 F.3d 624, 628 (6th Cir.2003). 1. Special Needs Searches Under Griffin In Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), the Supreme Court delineated the standards for analyzing searches of probationers under the Fourth Amendment. Citing the “special need” of states to closely supervise probationers to assure the observance of probation conditions, the Griffin Court upheld against a Fourth Amendment challenge a Wisconsin regulation authorizing the warrantless search of a probationer’s home when a probation officer has “reasonable grounds” to suspect the presence of contraband. Id. at 870-76, 107 S.Ct. at 3167-170. As explained by the Supreme Court, the reasonable grounds search at issue in Griffin “satisfied the demands of the Fourth Anendment because it was carried out pursuant to a regulation that itself satisfies the Fourth Amendment’s reasonableness requirement under well-established principles.” Id. at 873, 107 S.Ct. at 3168. Because the special needs of parole systems mirror those of probation systems, subsequent courts logically extended the Griffin exception to the warrant and probable cause requirement to searches of parolees as well. See, e.g., Payne, 181 F.3d at 787 (citing Griffin for the proposition that “[i]n the context of the special needs of the parole system, the presence of a reasonable regulatory scheme can make a search upon less than probable cause ‘reasonable’ for purposes of the Fourth Amendment”); United States v. Jones, 152 F.3d 680, 685 (7th Cir.1998) (noting that the Griffin principles “apply to parolees at least to the same degree as probationers”). In analyzing a special needs search of a parolee under Griffin and its progeny, courts conduct a two-pronged inquiry. First, courts examine whether the relevant regulation or statute pursuant to which the search was conducted satisfies the Fourth Amendment’s reasonableness requirement. See Payne, 181 F.3d at 786-91; United States v. Conway, 122 F.3d 841, 842-43 (9th Cir.1997). If so, courts then analyze whether" }, { "docid": "19019079", "title": "", "text": "the warrant at issue. In seeking to inspect defendants’ premises, the agents were not attempting to make what might be called a “traditional” fourth amendment search. See, e. g., Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Rather, pursuant to existing statutory authority, see 26 U.S.C. §§ 5146(b), 7606(a) (1970), and related administrative regulations, the agents were simply seeking a warrant to enable them to complete a valid and permissible regulatory inspection. Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). While the fourth amendment’s requirement of reasonableness clearly extends to the application for such inspection warrants, Camara v. Municipal Court, supra, 387 U.S. at 528-534, [87 S.Ct. 1727,] it is settled law that such warrants may issue despite the absence of probable cause to believe that a specific violation has occurred. Id. at 534, [87 S.Ct. 1727]. Rather, where “reasonable legislative or administrative standards” have been satisfied, the limitations upon inspection searches imposed by the fourth amendment will be deemed to have been complied with. Id. at 538, [87 S.Ct. 1727.] In the instant case, the application for the warrant indicated that, upon personal examination of the agent, it appeared that the defendant tavern was serving liquor despite the absence of the required Retail Liquor Dealer’s Special Tax Stamp. See 26 U.S.C. § 6806 (1970). Moreover, the application additionally asserted that no inspection of the defendants’ premises had previously been made within the past twelve months. We think that in an industry so heavily and historically regulated as the liquor trade, see Colonnade Catering Corp. v. United States, supra, 397 U.S. at 75, 77, [90 S.Ct. 774], a- warrant issuing upon either of these two operative facts would easily comport with existing administrative and legislative inspection criteria, and would thus be reasonable under the fourth amendment. 495 F.2d, at 1331. Thus, while the contours are yet somewhat loosely defined," }, { "docid": "9743689", "title": "", "text": "show that Specialist Lynch acted under color of state law and that she deprived him of a right secured by the Constitution or laws of the United States. Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994). Here, there is no dispute that Lynch was acting under color of state law when she arrived at Palmieri’s house to conduct the inspection. Thus, the question before the District Court — and now before us in this appeal — is whether Lynch violated Palmieri’s Fourth Amendment rights. I. Special Needs Exception A warrantless inspection of a private dwelling by a municipal administra tive officer without the consent of the owner is generally unreasonable absent specifically delineated circumstances. See Camara v. Mun. Ct. of S.F., 387 U.S. 523, 528-29, 539-40, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (reversing an individual’s conviction for refusing to allow, a warrantless inspection of his residence by municipal building inspectors because the inspection was a significant intrusion and lacked “compelling urgency”); see also Sokolov v. Vill. of Freeport, 52 N.Y.2d 341, 343, 344-46, 438 N.Y.S,2d 257, 420 N.E.2d 55 (1981) (prohibiting the warrantless inspection of residential rental property to check on health conditions). However, “searches pursuant to a regulatory scheme need not adhere to the usual requirements” where special governmental needs are present. Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).' Thus, “in limited circumstances, a search unsupported by either [a] warrant or probable cause can be constitutional,” but only where “ ‘special needs’ other than the normal need for law enforcement provide sufficient justification.” Ferguson v. City of Charleston, 532 U.S. 67, 76 n. 7, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001). Moreover, the Supreme Court has observed that, typically, such “special needs” will be recognized only where “the usual warrant or probable-cause requirements” have somehow been rendered impracticable. See Griffin, 483 U.S. at 873. Warrantless searches have regularly been allowed when they were conducted pursuant to some legislated regulatory scheme in situations in which there was found to exist a diminished expectation of privacy. The special needs doctrine, in particular," } ]

[ { "docid": "19657717", "title": "", "text": "to Pulitano, the “drive stun” setting is the least painful and incapacitating of the taser’s two settings. Pulitano Depo. at 27-29. Rather than shooting out two prongs that deliver a powerful, total-body incapacitating charge, in \"drive stun” mode the taser is placed directly against a person’s skin and delivers a charge that causes pain only in the immediate area. Id. at 29. . Cardona does invoke Reese v. Herbert, 527 F.3d 1253 (11th Cir.2008). However, this case post-dates Cardona's November 20, 2003 arrest and could not have given Barcelo and Pulitano notice of the lawfulness of their actions. . Pulitano states in his Motion that \"[i]t is black-letter law in this Circuit that the use of a taser gun in a 'difficult, tense, and uncertain situation' to subdue a suspect who has repeatedly ignored police instructions and continues to act belligerently toward police is not excessive force,” invoking the case Zivojinovich v. Barner, 525 F.3d 1059 (11th Cir.2008). BSO Mot. for Summ. J., D.E. # 143 at 33. This argument is of no avail to Pulitano— whether or not Cardona ignored police instructions or refused to cooperate is clearly in dispute here. The same goes for Pulitano's reference to Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.2004), where the Eleventh Circuit held the use of a taser to effect an arrest did not constitute excessive force where the arrestee repeatedly ignored verbal requests to comply and had been “hostile, belligerent, and uncooperative.” Further, both of those cases post-dated Cardona’s arrest, and so could not have provided any guidance to Pulitano or Barcelo in that situation. . In suing the Sheriff of Broward County, Cardona essentially sues the agency Lamberti represents. See Ky. v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (“Official-capacity suits ... generally represent only another way of pleading an action against an entity of which an officer is an agent.”) (internal quotation and citations omitted). . Again, this is essentially a claim against the BSO. See Footnote 15; Ky. v. Graham, 473 U.S. at 165, 105 S.Ct. 3099. . In addition, the" } ]

[ { "docid": "7949245", "title": "", "text": "Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). A. Nature and Quality of Intrusion I begin from the proposition that “[t]he three factors articulated in Graham, and other factors bearing on the reasonableness of a particular application of force, are not to be considered in a vacuum but only in relation to the amount of force used to effect a particular seizure.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir.2005) (quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir.1994)). The majority acknowledges this court’s determination in Mattos v. Agarano, 590 F.3d 1082 (9th Cir.2010) (per curiam), that a single application of a Taser in drive-stun mode to the back of a suspect’s hand amounted to “a serious intrusion into the core of the interests protected by the Fourth Amendment: the right to be ‘secure in [our] persons.’ ” Id. at 1087 (quoting U.S. Const, amend IV)- Nonetheless, the majority minimizes the amount of force the Officers used against Brooks in two different ways: (1) it distinguishes between the Taser’s two operating modes, the more commonly employed dart mode and the drive-stun mode used in this case, and (2) it compares the drive-stun mode to “pain-compliance techniques.” Neither consideration has anything to do with the factors that really matter here: The force used was quite painful, and it left permanent scars. As to the majority’s first factor, we have held that Tasers used in dart mode “constitute an intermediate, significant level of force that must be justified by a strong government interest that compels the employment of such force.” Bryan v. McPherson, 590 F.3d 767, 774-75 (9th Cir.2009) (quoting Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir.2003)) (internal quotations and brackets omitted). The majority observes that using a Taser in drivestun mode does not cause the same neuromuscular incapacitation that the dart mode produces. Noting that the Taser deployment in Bryan caused the suspect to fall to the pavement and shatter his" }, { "docid": "23261571", "title": "", "text": "disorientation, loss of balance, and weakness,” even after the electrical current has ended. Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n. 2 (7th Cir. 1990); see also Beaver v. City of Federal Way, 507 F.Supp.2d 1137, 1144 (W.D.Wash.2007) (“[A]fter being tased, a suspect may be dazed, disoriented, and experience vertigo.”). Moreover, tasering a person may result in serious injuries when intense pain and loss of muscle control cause a sudden and uncontrolled fall. The X26 thus intrudes upon the victim’s physiological functions and physical integrity in a way that other non-lethal uses of force do not. While pepper spray causes an intense pain and acts upon the target’s physiology, the effects of the X26 are not limited to the target’s eyes or respiratory system. Unlike the police “nonchakus” we evaluated in Forrester v. City of San Diego, 25 F.3d 804 (9th Cir.1994), the pain delivered by the X26 is far more intense and is not localized, external, gradual, or within the victim’s control. Id. at 807, 805 n. 5. In light of these facts, we agree with the Fourth and Eighth Circuit’s characterization of a taser shot as a “painful and frightening blow.” Orem v. Rephann, 523 F.3d 442, 448(4th Cir.2008) (quoting Hickey, 12 F.3d at 757). We therefore conclude that tasers like the X26 constitute an “intermediate or medium, though not insignificant, quantum of force,” Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1168(E.D.Cal.2008); Beaver, 507 F.Supp.2d at 1144 (“[T]he Court first finds that the use of a Taser constituted significant force.”). We recognize the important role controlled electric devices like the Taser X26 can play in law enforcement. The ability to defuse a dangerous situation from a distance can obviate the need for more severe, or even deadly, force and thus can help protect police officers, bystanders, and suspects alike. We hold only that the X26 and similar devices when used in dart-mode constitute an intermediate, significant level of force that must be justified by the governmental interest involved. 2. Governmental Interest in the Use of Force Under Graham v. Connor, we evaluate the government’s interest in the" }, { "docid": "7949209", "title": "", "text": "dart mode, “constitute^] an intermediate, significant level of force that must be justified by a strong government interest that compels the employment of such force.” Bryan, 590 F.3d at 774 (internal quotation marks omitted). In Bryan, a police officer discharged his X26 Taser from a distance of approximately 20-25 feet, embedding a barbed electrical probe into Bryan’s arm. Id. at 771. The X26’s powerful electrical pulse delivered an excruciating pain throughout Bryan’s body and caused Bryan to lose all muscular control, fall face first onto the pavement, shatter four front teeth, and suffer facial abrasions and swelling. Id. He also needed to have the electrical barb surgically removed from his flesh. Id. at 773. Because the pain inflicted by the X26 Taser was “intense, [was] felt throughout the body, and [was] administered by effectively commandeering the victim’s muscles and nerves,” we held the X26 Taser to be “an intermediate or medium, though not insignificant, quantum of force.” Id. at 774-75. The force at issue here is markedly different than the force in Bryan, and, unlike in Mattos, we have the benefit of a fully-developed record on the use of a Taser in drive-stun mode. The use of the Taser in drive-stun mode is painful, certainly, but also temporary and localized, without incapacitating muscle contractions or significant lasting injury. Brooks said she sustained burn marks and now has scars on her upper arm and thigh, which is certainly not insignificant, but these injuries are far less serious than those inflicted on Bryan by the X26 Taser — excruciating pain throughout his entire body, temporary paralysis, facial abrasions, shattered teeth, and a sharp barb lodged into his flesh. Thus, the use of the Taser in drive-stun mode — as opposed to dart mode— seems unlike the force used in Bryan or uses of force which this court has previously considered severe. See, e.g., Davis, 478 F.3d at 1055 (holding that the force used was “extremely severe” when officer slammed suspect head-first into the wall, breaking his neck, then pressed to the ground by the officer’s knee and punched); Smith, 394 F.3d at" }, { "docid": "23554367", "title": "", "text": "manufacturer Taser, International, which claims a “0% injury rate” for the taser model used on Barnes. Bryan v. MacPherson, 630 F.3d 805, 815 (9th Cir.2010) (Wardlaw, J., concurring); GAO Report at 11-12. The unique effects of newer tasers, which cause both pain and full body paralysis, were considered by the Ninth Circuit in Bryan. The court rejected the notion that “because the taser results only in the ‘temporary’ infliction of pain, it constitutes a nonintrusive level of force.” 630 F.3d at 825. Rather, tasers’ physiological effects, ... high levels of pain, and foreseeable risk of physical injury [make tasers] a greater intrusion than other non-lethal methods of force.... The pain is intense, is felt throughout the body, and ... effectively commandeer[s] the victim’s muscles and nerves.... Moreover, tasering [may cause] serious injuries when intense pain and loss of muscle control cause a sudden and uncontrolled falls. The [taser] thus intrudes upon the victim’s physiological functions and physical integrity in a way that other non-lethal uses of force do not. 630 F.3d at 825 (internal citations omitted). The Bryan court also concluded that tasers “used in dart-mode constitute an intermediate, significant level of force that must be justified by the government interest involved.” The court differentiated tasers used in “drive-stun” mode, where an officer presses electrical nodes against a person’s body, from using a taser to fire metal darts into the body. Id. at 826. Both modes cause incapacitating pain, but only darts paralyze the entire body. Jt. App. 84. In this case Officer Pollreis used her taser’s dart mode on James Barnes when she perceived that he might try to escape out a window. The taser’s two metal probes lodged in his lower back. The weapon then did exactly what it was designed to do: it completely incapacitated Barnes’s entire body. Instead of falling to the floor as Pollreis expected, Barnes smashed through the window and over the porch and fell onto the ground. The taser’s paralyzing effect apparently made Barnes unable to break his fall, and he died of massive brain trauma a few days later. Even though the" }, { "docid": "7949246", "title": "", "text": "of force the Officers used against Brooks in two different ways: (1) it distinguishes between the Taser’s two operating modes, the more commonly employed dart mode and the drive-stun mode used in this case, and (2) it compares the drive-stun mode to “pain-compliance techniques.” Neither consideration has anything to do with the factors that really matter here: The force used was quite painful, and it left permanent scars. As to the majority’s first factor, we have held that Tasers used in dart mode “constitute an intermediate, significant level of force that must be justified by a strong government interest that compels the employment of such force.” Bryan v. McPherson, 590 F.3d 767, 774-75 (9th Cir.2009) (quoting Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir.2003)) (internal quotations and brackets omitted). The majority observes that using a Taser in drivestun mode does not cause the same neuromuscular incapacitation that the dart mode produces. Noting that the Taser deployment in Bryan caused the suspect to fall to the pavement and shatter his teeth, the majority concludes that, “when compared to the far more serious intrusion in Bryan, we find the quantum of force here to be less than the intermediate.” Maj. op. at 1028. But in Mattos, we characterized the single activation of a Taser in drive-stun mode as a “serious intrusion.” And the Eighth Circuit in Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir.2009), held that a reasonable jury could find that a single application of a Taser in drive-stun mode to the arm of an individual suspected of committing a “minor, nonviolent crime! ]” and who posed no “realistic threat to [the officer’s] safety” constituted excessive force. Id. at 497-98. Although the court explained the difference between the dart and drive-stun modes, id. at 495 n. 3, the distinction played no role in the court’s excessive force analysis. As to the majority’s second factor, the majority minimizes the amount of force used in this case by equating it to “pain-compliance techniques,” which it asserts “this court has found involve a ‘less significant’" }, { "docid": "22285571", "title": "", "text": "in mind, we turn to the cases before us. A. Brooks v. City of Seattle 1. Defendant Officers Used Excessive Force Against Brooks We begin by considering the nature and quality of the force used against Brooks: a taser in drive-stun mode. We have previously described the force involved when a taser is deployed in dart-mode. See Bryan, 630 F.3d 805. In Bryan, we explained that in dart-mode the taser uses compressed nitrogen to propel a pair of “probes” — aluminum darts tipped with stainless steel barbs connected to the [taser] by insulated wires — toward the target at a rate of over 160 feet per second. Upon striking a person, the [taser] delivers a 1200 volt, low ampere electrical charge ... The electrical impulse instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless. Id. at 824 (footnote omitted). When a taser is used in drivestun mode, the operator removes the dart cartridge and pushes two electrode contacts located on the front of the taser directly against the victim. In this mode, the taser delivers an electric shock to the victim, but it does not cause an override of the victim’s central nervous system as it does in dart-mode. Each of the three times that Jones tased Brooks in drive-stun mode, the shock was “extremely painful.” In Bryan, we held that tasers used in dart-mode “constitute an intermediate, significant level of force.” Id. at 826. Here, the record is not sufficient for us to determine what level of force is used when a taser is deployed in drive-stun mode. We follow the Supreme Court’s guidance in Scott, however, and need not decide this issue in order to assess the reasonableness of the tasing. See 550 U.S. at 383, 127 S.Ct. 1769 (“Whether or not [a defendant’s] actions constituted application of ‘deadly force,’ all that matters is whether [the defendant’s] actions were reasonable.”). Instead, we proceed to determine whether Jones’s use of the taser against Brooks in this case was reasonable, keeping in mind the magnitude of the electric shock at" }, { "docid": "7081516", "title": "", "text": "marks inflicted by the taser are sufficient to do so.” Cook, 582 F.3d at 860 (Shepherd, J., concurring in part and dissenting in part). The Court does consider, however, the effects of the taser in assessing whether Officer Wingate violated Orsak’s right to be free from excessive force. In assessing the reasonableness of the use of force, the “court may also consider the result of the force” and “the extent of the suspect’s injuries.” Smith, 586 F.3d at 580-81; Rohrbough, 586 F.3d at 585-86 (internal quotation marks omitted). This analysis is relevant in light of the court’s duty to balance the governmental interests at stake, as addressed by the Graham factors, against the nature and quality of the intrusion on the individual’s Fourth Amendment interests. See Howard, 570 F.3d at 989. Where, as here, the governmental interests are minimal, even a comparatively modest intrusion on an individual’s Fourth Amendment interests may violate the Constitution. “Tasers are generally considered non-lethal or less lethal force.” Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1168 (E.D.Cal.2008) (collecting cases). In Brown, the Eighth Circuit noted the distinction between a taser used in the less painful “drive stun mode,” see Battiste v. Lamberti 571 F.Supp.2d 1286, 1304 n. 12 (S.D.Fla.2008), as it was against the passenger in Brawn, and a taser used in the standard mode, as it was against Orsak: [T]he Taser causes electrical muscular disruption and ... a full Taser cycle lasts five seconds and delivers a 50,000 volt shock. The Taser’s air cartridge contains two darts that can be deployed and will penetrate the skin, causing electrical muscular disruption between the two darts.... [I]f the air cartridge is removed, the Taser may be operated in drive stun mode and used as a pain compliance tool. In drive stun mode, the Taser’s electrical probes are applied directly to the person and the electrical muscular disruption occurs between the two probes. 574 F.3d at 495 n. 3 (citing the testimony of the officer who deployed the taser). After the taser is fired in the standard mode, the darts remain connected to the taser gun" }, { "docid": "22502547", "title": "", "text": "posed no immediate threat to their safety. Taken in the light most favorable to Bonivert, the evidence reflects that Bonivert remained inside the home at all times; that Bonivert did not threaten or advance toward the officers; that Bonivert posed no immediate threat to the officers; that Combs threw Bonivert across the back room; that Bonivert did not resist arrest; and that Combs tasered Bonivert several times in drive-stun mode notwithstanding Bonivert's compliance. The evidence does not justify the district court's conclusion that \"no reasonable jury could find the use of force within the home excessive.\" To be sure, the reasonableness inquiry in the context of excessive force balances \"intrusion[s] on the individual's Fourth Amendment interests\" against the government's interests. Graham , 490 U.S. at 396, 109 S.Ct. 1865 (citation and internal quotation marks omitted). But in weighing the evidence in favor of the officers, rather than Bonivert, the district court unfairly tipped that inquiry in the officers' favor. See Act Up!/Portland v. Bagley , 988 F.2d 868, 873 (9th Cir. 1993) (\"[T]he determination of what conduct underlies the alleged violation-what the officer and claimant did or failed to do-is a determination of fact.\"). Thus, genuine issues of fact \"prevent[ ] a determination of qualified immunity at summary judgment [such] that the case must proceed to trial.\" See id. For the foregoing reasons, we REVERSE the district court's grant of summary judgment on qualified immunity grounds on the Fourth Amendment claims for unlawful entry and excessive force, and REMAND for proceedings consistent with this opinion. REVERSED AND REMANDED. The Sandburg Range 119 (1957). \"When a taser is used in drive[-]stun mode, the operator removes the dart cartridge and pushes two electrode contacts located on the front of the taser directly against the victim. In this mode, the taser delivers an electric shock to the victim, but it does not cause an override of the victim's central nervous system as it does in dart-mode.\" Mattos v. Agarano , 661 F.3d 433, 443 (9th Cir. 2011). Because the City of Clarkston is located within Asotin County, County officers will respond to requests" }, { "docid": "23287349", "title": "", "text": "official immunity because he wilfully violated her right to be free from excessive force. Conclusion We affirm the district court’s order denying summary judgment on the basis of qualified and official immunity. . The Honorable Michael J. Davis, Chief Judge, United States District Court for the District of Minnesota. . Ms. Brown voluntarily dismissed her claims against the city of Golden Valley and her claim for false arrest against Zarrett. . Zarrett testified that the Taser causes electrical muscular disruption and that a full Taser cycle lasts five seconds and delivers a 50,000 volt shock. The Taser’s air cartridge contains two darts that can be deployed and will penetrate the skin, causing electrical muscular disruption between the two darts. Zarrett explained that if the air cartridge is removed, the Taser may be operated in drive stun mode and used as a pain compliance tool. In drive stun mode, the Taser's electrical probes are applied directly to the person and the electrical muscular disruption occurs between the two probes. . We recognize that a late night traffic stop presents certain inherent risks to an officer’s safety. Zarrett testified that officers generally park their squad cars behind and closer to the passing traffic than the car in front of them. According to Zarrett, parking this way creates a buffer, fanning the squad cars out from the stopped car. In this case, four squad cars were parked behind Richard's car, with Zarrett's car located the farthest back and to the right of the other cars. The squad cars and their lights presumably alerted motorists to the traffic stop, but it was nonetheless dark outside. There was also road construction in the area, and Richard had pulled the car into the farthest lane on the left, meaning that Zarrett was standing near passing traffic as he confronted Sandra. These facts alone do not justify Zarrett’s use of force. Accepting Sandra’s version of the facts as true, she was merely sitting quietly with her seat belt fastened, speaking to a 911 operator when Zarrett used summary force against her. . The Taser is a relatively" }, { "docid": "7081518", "title": "", "text": "by high-voltage wire. Oliver ex rel. Estate of Oliver v. Fiorino, 586 F.3d 898, 903 (11th Cir.2009). The taser gun then “transmits electrical pulses along the wires and into the body of the target.” Id. (internal quotation marks omitted). Those electrical pulses occur at a rate of approximately twelve pulses per second, or sixty pulses for each five-second cycle. Beaver v. City of Fed. Way, 507 F.Supp.2d 1137, 1142 (W.D.Wash.2007). The pulses cause “immobilization, disorientation, loss of balance, and weakness. When used successfully, a taser renders an individual incapacitated, disoriented, and unable to move.” Buckley v. Haddock, 292 Fed.Appx. 791, 803 (11th Cir.2008) (Martin, J., dissenting) (citation and internal quotation marks omitted). The taser is “designed to cause significant, uncontrollable muscle contractions capable of incapacitating even the most focused and aggressive combatants.” Oliver, 586 F.3d at 903 (internal quotation marks omitted). The Eighth Circuit has rejected efforts “to minimize the pain of being shot with a stun gun” as “completely baseless,” noting that “a stun gun inflicts a painful and frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim helpless.” Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir.1993). The court described the effects of such force as “torment without marks.” Id. Other courts have also recognized that the effects of the taser are more than de minimis. In Lewis v. Downey, the Seventh Circuit rejected a magistrate judge’s determination that “the use of the taser gun was a de minimis application of force.” 581 F.3d at 475; see also Orem v. Rephann, 523 F.3d 442, 447-48 (4th Cir.2008) (affirming the district court’s rejection of defendant’s argument that a 1.5 second application of a taser in drive stun mode resulted in only de minimis injury). In the Fourth Amendment context, the Western District of Washington acknowledged that “the use of a Taser constitute[s] significant force.” Beaver, 507 F.Supp.2d at 1144. Even if a taser does not require hospitalization or cause quantifiable injuries, it does cause extreme pain, and such pain may support a claim for excessive force. In examining excessive force claims brought under the" }, { "docid": "23287348", "title": "", "text": "677 (Minn.1988)). When an official is exercising such discretionary functions, official immunity applies unless a “willful or malicious wrong is committed.” Id. In the context of official immunity, “willful” and “malicious” are synonymous, and the Minnesota Supreme Court has defined malice as “nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.” Rico v. State, 472 N.W.2d 100, 107 (Minn.1991) (quoting Carnes v. St. Paul Union Stockyards Co., 164 Minn. 457, 205 N.W. 630, 631 (1925)). “Whether or not an officer acted maliciously or willfully is usually a question of fact to be resolved by the jury.” Johnson v. Morris, 453 N.W.2d 31, 42 (Minn.1990). Sandra presented sufficient evidence to preclude summary judgment on the basis of official immunity on the alleged state tort claims. As set forth above, there is a fact dispute regarding whether Zarrett used excessive force during the Tasering and arrest. Accepting Sandra’s account as true, a jury could find that Zarrett is not entitled to official immunity because he wilfully violated her right to be free from excessive force. Conclusion We affirm the district court’s order denying summary judgment on the basis of qualified and official immunity. . The Honorable Michael J. Davis, Chief Judge, United States District Court for the District of Minnesota. . Ms. Brown voluntarily dismissed her claims against the city of Golden Valley and her claim for false arrest against Zarrett. . Zarrett testified that the Taser causes electrical muscular disruption and that a full Taser cycle lasts five seconds and delivers a 50,000 volt shock. The Taser’s air cartridge contains two darts that can be deployed and will penetrate the skin, causing electrical muscular disruption between the two darts. Zarrett explained that if the air cartridge is removed, the Taser may be operated in drive stun mode and used as a pain compliance tool. In drive stun mode, the Taser's electrical probes are applied directly to the person and the electrical muscular disruption occurs between the two probes. . We recognize that a late night" }, { "docid": "7081515", "title": "", "text": "of excessive force.” 914 F.2d 1076, 1082 (8th Cir.1990). In Crumley v. City of St. Paul, a case cited by defendants, the plaintiff complained that she was “unnecessarily pushed and improperly handcuffed.” 324 F.3d 1003, 1007 (8th Cir.2003). The use of handcuffs, unlike the use of a taser, is a standard practice in nearly every arrest. To allow excessive force claims to survive summary judgment every time a plaintiff alleged that handcuffs were painful would disregard the inherent necessity of the use of handcuffs in the context of an arrest. Tasers, by contrast, are not a routine part of an arrest and inflict a type of pain different in nature and quality from any injury associated with handcuffing alone. The taser prongs puncture the skin and deliver 50,000 volts of electricity into the body. When properly deployed, a taser incapacitates muscles, causing the suspect to collapse to the ground. Assuming Orsak “must make a showing of some minimum level of injury in order to make out a claim for excessive force, the pain and puncture marks inflicted by the taser are sufficient to do so.” Cook, 582 F.3d at 860 (Shepherd, J., concurring in part and dissenting in part). The Court does consider, however, the effects of the taser in assessing whether Officer Wingate violated Orsak’s right to be free from excessive force. In assessing the reasonableness of the use of force, the “court may also consider the result of the force” and “the extent of the suspect’s injuries.” Smith, 586 F.3d at 580-81; Rohrbough, 586 F.3d at 585-86 (internal quotation marks omitted). This analysis is relevant in light of the court’s duty to balance the governmental interests at stake, as addressed by the Graham factors, against the nature and quality of the intrusion on the individual’s Fourth Amendment interests. See Howard, 570 F.3d at 989. Where, as here, the governmental interests are minimal, even a comparatively modest intrusion on an individual’s Fourth Amendment interests may violate the Constitution. “Tasers are generally considered non-lethal or less lethal force.” Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1168 (E.D.Cal.2008) (collecting cases)." }, { "docid": "22285570", "title": "", "text": "U.S. 194, 198-99, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam) (explaining that Graham and Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), “are cast at a high level of generality” and cannot, in every case, “offer a basis for decision”). The Supreme Court has stated, however, that “in an obvious case, these standards can ‘clearly establish’ the answer, even without a body of relevant case law.” Id. at 199, 125 S.Ct. 596 (citing Hope, 536 U.S. at 738, 122 S.Ct. 2508). Although this “obvious ease” exception remains good law, the Supreme Court recently clarified that the bar for finding such obviousness is quite high. In al-Kidd, the Court emphasized that it has “repeatedly told courts not to define clearly established law at a high level of generality. The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly es tablished.” 131 S.Ct. at 2084 (citations omitted). With these principles in mind, we turn to the cases before us. A. Brooks v. City of Seattle 1. Defendant Officers Used Excessive Force Against Brooks We begin by considering the nature and quality of the force used against Brooks: a taser in drive-stun mode. We have previously described the force involved when a taser is deployed in dart-mode. See Bryan, 630 F.3d 805. In Bryan, we explained that in dart-mode the taser uses compressed nitrogen to propel a pair of “probes” — aluminum darts tipped with stainless steel barbs connected to the [taser] by insulated wires — toward the target at a rate of over 160 feet per second. Upon striking a person, the [taser] delivers a 1200 volt, low ampere electrical charge ... The electrical impulse instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless. Id. at 824 (footnote omitted). When a taser is used in drivestun mode, the operator removes the dart cartridge and pushes two electrode contacts located on the front of the taser" }, { "docid": "7949225", "title": "", "text": "Brooks’s contentions that she did not refuse to sign the Citation to Appear, our analysis is different. . In 2006, the Washington legislature amended this statute to omit the authorization to effect a custodial arrest for failure to sign the Citation to Appear. See Wash. Rev.Code § 46.64.015. However, the earlier version was applicable to the events of this case. . SPD's policies, found constitutional by the district court, state that officers must only use \"the minimal amount of force necessary to overcome physical aggression or resistance to compliance with a lawful process.\" The Use of Force Training Guideline provides context for that general statement, presenting a continuum describing the suspect's level of resistance and the corresponding reasonable force which may be used to react to that resistance. . Although the Mattos panel appears to accept that the Taser was deployed in drive-stun mode, see 590 F.3d at 1087 (\"[D]efendant's expert conceded that a Taser in the drive stun mode induces subject control through pain compliance ...” (internal quotation marks omitted)), Mattos’s description of a generalized loss of muscle control is more indicative of a Taser in dart mode. She also claims to have \"removed the Taser’s prongs herself,” id., another characteristic of dart mode. . The holding in Bryan applied to the X26 Taser model and \"all controlled electric devices that cause similar physiological effects.” See Bryan, 590 F.3d at 772 n. 2. Although this would clearly implicate the use of a Taser in dart mode — which has similar physiological effects as the X26 — the localized, non-incapacitating effect of the drive-stun mode has markedly different physiological effects. . Other circuit and district court decisions have also found the Taser dart application to be an intermediate amount of force. See, e.g., Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.2004); Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1168 (E.D.Cal.2008) (citing cases). But see Parker v. Gerrish, 547 F.3d 1, 10 (1st Cir.2008) (finding a jury could have found a Taser dart application unreasonable in light of testimony about its \"strong incapacitating effect” and the fact that the" }, { "docid": "7949208", "title": "", "text": "“an incredible burning and painful feeling locking all of [her] joints.” Id. at 1085 (internal quotation marks omitted; alteration in original). The panel, however, cited conflicting testimony regarding the amount of force used and the severity of plaintiffs injuries. Id. at 1087. It observed that “the Taser, in general, is more than a non-serious or trivial use of force but less than deadly force,” and noted that “[u]nfortunately, there is a lot of room between these end points.” Id. The panel noted that “the record on this point is not as developed as we could hope for,” but concluded that “the Taser stun was a serious intrusion into the core of the interests protected by the Fourth Amendment.” Id. The Mottos panel did not differentiate drive-stun and dart modes, nor did it differentiate the quantum of force used on Mattos from the quantum of force used in Bryan. The Bryan panel undertook a more detailed analysis of the quantum of force. The panel concluded that the use of a Taser, in a manner equivalent to dart mode, “constitute^] an intermediate, significant level of force that must be justified by a strong government interest that compels the employment of such force.” Bryan, 590 F.3d at 774 (internal quotation marks omitted). In Bryan, a police officer discharged his X26 Taser from a distance of approximately 20-25 feet, embedding a barbed electrical probe into Bryan’s arm. Id. at 771. The X26’s powerful electrical pulse delivered an excruciating pain throughout Bryan’s body and caused Bryan to lose all muscular control, fall face first onto the pavement, shatter four front teeth, and suffer facial abrasions and swelling. Id. He also needed to have the electrical barb surgically removed from his flesh. Id. at 773. Because the pain inflicted by the X26 Taser was “intense, [was] felt throughout the body, and [was] administered by effectively commandeering the victim’s muscles and nerves,” we held the X26 Taser to be “an intermediate or medium, though not insignificant, quantum of force.” Id. at 774-75. The force at issue here is markedly different than the force in Bryan, and, unlike" }, { "docid": "23554363", "title": "", "text": "at 495 n. 3, penetrating up to half an inch. Bryan v. MacPherson, 630 F.3d 805, 810 (9th Cir.2010) (Wardlaw, J., concurring). Connected by wires to the taser, the probes can deliver a 50,000 volt shock that lasts up to five seconds and causes “electrical muscular disruption.” Brown, 574 F.3d at 495 n. 3. Almost twenty years ago we described a taser shock as “a painful and frightening blow, which temporarily paralyzes the large muscles ..., rendering the victim helpless.” Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir.1993). Hickey examined the older taser models, which already could cause “torment without marks” and paralyze local muscles. Id. Although “one need not have personally endured a taser jolt to know the pain that must accompany it,” Lewis v. Downey, 581 F.3d 467, 475 (7th Cir.2009), the sensation of high voltage electrical shock is outside common experience and can easily be underestimated. Unlike other police weapons, tasers can be fatally confused with guns, which further distinguishes them from older technologies. See, e.g., Torres v. City of Madera, 655 F.Supp.2d 1109, 1118-19 (E.D.Cal.2009) (officer fatally shot suspect, intending to tase him); Henry v. Purnell, 619 F.3d 323, 327 (4th Cir.2010) (en banc pending) (officer shot suspect in elbow, intending to tase him). And especially with the newer tasers, the “nature and quality of [their] intrusion on the individual’s Fourth Amendment interests,” Graham, 490 U.S. at 396, 109 S.Ct. 1865, is somewhat unique in that they render even the most pain tolerant individuals utterly limp. It appears that the Omaha Police Department has changed its position on tasers at least once in the past several years. It is not however clear from the record in which exact circumstances OPD policy would permit the use of a taser. The officers asserted in affidavits that departmental policies “authorize the use of Taser weapons to stop a suspect who is trying to flee,” Jt.App. 10, 16, and during an internal investigation the department’s taser coordinator did not question Pollreis’s use of a taser on a nonviolent suspect attempting to escape. Id. at 556. In contrast, the written" }, { "docid": "22285572", "title": "", "text": "directly against the victim. In this mode, the taser delivers an electric shock to the victim, but it does not cause an override of the victim’s central nervous system as it does in dart-mode. Each of the three times that Jones tased Brooks in drive-stun mode, the shock was “extremely painful.” In Bryan, we held that tasers used in dart-mode “constitute an intermediate, significant level of force.” Id. at 826. Here, the record is not sufficient for us to determine what level of force is used when a taser is deployed in drive-stun mode. We follow the Supreme Court’s guidance in Scott, however, and need not decide this issue in order to assess the reasonableness of the tasing. See 550 U.S. at 383, 127 S.Ct. 1769 (“Whether or not [a defendant’s] actions constituted application of ‘deadly force,’ all that matters is whether [the defendant’s] actions were reasonable.”). Instead, we proceed to determine whether Jones’s use of the taser against Brooks in this case was reasonable, keeping in mind the magnitude of the electric shock at issue and the extreme pain that Brooks experienced. See Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir.2009) (noting that a woman who was tased in drive-stun mode experienced “extreme pain” and “felt a sharp pain where the Taser met her arm, with the pain radiating from her upper arm and causing her muscles to clench”). In evaluating the reasonableness of Jones’s action, we consider the governmental interests at stake and begin with (1) how severe the crime at issue was, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. Deorle, 272 F.3d at 1279-80. According to the facts as alleged by Brooks, the officers pulled her over for speeding and then detained and took her into custody because she refused to sign a traffic citation. She refused to sign the citation after she gave Ornelas her driver’s license and he spent five minutes in his squad car with" }, { "docid": "7081517", "title": "", "text": "In Brown, the Eighth Circuit noted the distinction between a taser used in the less painful “drive stun mode,” see Battiste v. Lamberti 571 F.Supp.2d 1286, 1304 n. 12 (S.D.Fla.2008), as it was against the passenger in Brawn, and a taser used in the standard mode, as it was against Orsak: [T]he Taser causes electrical muscular disruption and ... a full Taser cycle lasts five seconds and delivers a 50,000 volt shock. The Taser’s air cartridge contains two darts that can be deployed and will penetrate the skin, causing electrical muscular disruption between the two darts.... [I]f the air cartridge is removed, the Taser may be operated in drive stun mode and used as a pain compliance tool. In drive stun mode, the Taser’s electrical probes are applied directly to the person and the electrical muscular disruption occurs between the two probes. 574 F.3d at 495 n. 3 (citing the testimony of the officer who deployed the taser). After the taser is fired in the standard mode, the darts remain connected to the taser gun by high-voltage wire. Oliver ex rel. Estate of Oliver v. Fiorino, 586 F.3d 898, 903 (11th Cir.2009). The taser gun then “transmits electrical pulses along the wires and into the body of the target.” Id. (internal quotation marks omitted). Those electrical pulses occur at a rate of approximately twelve pulses per second, or sixty pulses for each five-second cycle. Beaver v. City of Fed. Way, 507 F.Supp.2d 1137, 1142 (W.D.Wash.2007). The pulses cause “immobilization, disorientation, loss of balance, and weakness. When used successfully, a taser renders an individual incapacitated, disoriented, and unable to move.” Buckley v. Haddock, 292 Fed.Appx. 791, 803 (11th Cir.2008) (Martin, J., dissenting) (citation and internal quotation marks omitted). The taser is “designed to cause significant, uncontrollable muscle contractions capable of incapacitating even the most focused and aggressive combatants.” Oliver, 586 F.3d at 903 (internal quotation marks omitted). The Eighth Circuit has rejected efforts “to minimize the pain of being shot with a stun gun” as “completely baseless,” noting that “a stun gun inflicts a painful and frightening blow, which temporarily paralyzes" }, { "docid": "7949226", "title": "", "text": "generalized loss of muscle control is more indicative of a Taser in dart mode. She also claims to have \"removed the Taser’s prongs herself,” id., another characteristic of dart mode. . The holding in Bryan applied to the X26 Taser model and \"all controlled electric devices that cause similar physiological effects.” See Bryan, 590 F.3d at 772 n. 2. Although this would clearly implicate the use of a Taser in dart mode — which has similar physiological effects as the X26 — the localized, non-incapacitating effect of the drive-stun mode has markedly different physiological effects. . Other circuit and district court decisions have also found the Taser dart application to be an intermediate amount of force. See, e.g., Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.2004); Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1168 (E.D.Cal.2008) (citing cases). But see Parker v. Gerrish, 547 F.3d 1, 10 (1st Cir.2008) (finding a jury could have found a Taser dart application unreasonable in light of testimony about its \"strong incapacitating effect” and the fact that the police department considered it just below deadly force on the force continuum). .The use of a Taser in drive-stun mode is considered a pain compliance technique both by the SPD's Use of Force Training Guideline and our jurisprudence. See San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 969 n. 8 (9th Cir.2005). . Three recent, out-of-circuit cases involved the use of a Taser in drivestun mode, but none specifically address the quantum of force represented by that usage. See Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir.2009); Orem v. Rephann, 523 F.3d 442 (4th Cir.2008); Davenport v. Causey, 521 F.3d 544 (6th Cir.2008). We do not hold that the use of a Taser in drive-stun mode can never amount to excessive force, but solely that such use was not excessive based upon Brooks’s conduct. Cf. Brown, 574 F.3d at 498 (concluding that a material issue of fact existed as to excessive force where officer applied Taser to frightened motor vehicle passenger speaking to a" }, { "docid": "7949247", "title": "", "text": "teeth, the majority concludes that, “when compared to the far more serious intrusion in Bryan, we find the quantum of force here to be less than the intermediate.” Maj. op. at 1028. But in Mattos, we characterized the single activation of a Taser in drive-stun mode as a “serious intrusion.” And the Eighth Circuit in Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir.2009), held that a reasonable jury could find that a single application of a Taser in drive-stun mode to the arm of an individual suspected of committing a “minor, nonviolent crime! ]” and who posed no “realistic threat to [the officer’s] safety” constituted excessive force. Id. at 497-98. Although the court explained the difference between the dart and drive-stun modes, id. at 495 n. 3, the distinction played no role in the court’s excessive force analysis. As to the majority’s second factor, the majority minimizes the amount of force used in this case by equating it to “pain-compliance techniques,” which it asserts “this court has found involve a ‘less significant’ intrusion upon an individual’s personal security than most claims of force.” Maj. op. at 1027-28 (quoting Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir.1994)). The majority states, somewhat misleadingly, that “[t]he use of a Taser in drive-stun mode is considered a pain compliance technique ... by ... our jurisprudence.” Maj. op. at 1027 n. 14 (citing San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 969 n. 8 (9th Cir.2005)). But San Jose Charter did not distinguish between Taser modes or even mention the drive-stun mode; it simply noted that the officers in that case “did not bring with them any of the variety of non-lethal ‘pain compliance’ weapons used by police forces, such as tasers or stunbag shotguns.” 402 F.3d at 969 n. 8. In fact, that footnote defeats the majority’s suggestion that pain-compliance techniques are necessarily a “less significant” intrusion than most claims of force. The other pain-compliance weapon identified in the footnote, a stunbag shotgun, has been recognized by this court" } ]

[ { "docid": "18737296", "title": "", "text": "of them, and then go to the jury only on selected ones, in effect holding the others in reserve for a subsequent or improved effort. If Saylor could be retried on a theory on which no verdict was reached because it was not charged, it would seem that such a retrial should be available no matter what the outcome on the count that was charged. As there is no necessary logical nexus between the two theories contained in the indictment, a retrial might be permitted whether Saylor was convicted and the conviction affirmed, convicted and the conviction reversed for procedural error, convicted and the conviction reversed for insufficiency (the case here — a functional acquittal on the conspiracy theory), or, in fact acquitted. We believe that the Double Jeopardy Clause forbids a second trial on the accomplice liability theory because such a trial would be vexatious, regardless of the outcome of the jury’s deliberation on the theory charged to it. It would be vexatious because the defendant underwent the jeopardy of a full trial, which is even more vexatious than the aborted or partial trials usually involved in double jeopardy cases, see 15 Yale L.J. at 288 n. 125; accord Scott, 437 U.S. at 99-101, 98 S.Ct. at 2198, and the trial failed to terminate in a verdict for reasons that cannot fairly be charged to the defendant. IV These principles lead us to conclude that the circumstances of Saylor’s conviction, and of the subsequent reversal of that conviction, entitle Saylor to the protection of the Double Jeopardy Clause against further prosecution for this murder under an accomplice theory of liability. We emphasize, however, that we do not hold that the evidence was legally insufficient in this case to have convicted Saylor of liability as an accomplice to murder. Indeed, the very reason his conviction for murder involving conspiracy was overturned by the state supreme court was because nearly all the evidence introduced at trial focused on Say-lor’s accomplice liability. Had the jury been presented with the accomplice theory, a guilty verdict could not have been overturned on the ground" } ]

[ { "docid": "8001836", "title": "", "text": "decided by a rigid application of mechanical formulae.” United States ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034, 1043 (3d Cir.1975). In this case, the trial ended without a factual determination of guilt or innocence on the assault charge, and we look closely at precisely why the trial terminated without the jury reaching a verdict on the charge. Had the trial terminated because of a deliberate election by the defendant, double jeopardy would not bar retrial. See United States v. Scott, 437 U.S. 82, 96, 99, 98 S.Ct. 2187, 2196, 2198 (1978). In contrast, when the trial terminates without a determination of guilt or innocence on a charge as a result of a deliberate, tactical decision by the prosecution, we examine whether the interests protected by double jeopardy principles would be offended by a retrial. Saylor v. Cornelius, 845 F.2d 1401 (6th Cir.1988), illustrates this approach. In Saylor, the defendant was indicted on one count of murder, which encompassed theories of culpability as a principal, as an accomplice, and as a conspirator. The jury was instructed only on the theory of conspiracy to commit murder despite considerable evidence showing culpability as an ac complice. The jury convicted on the conspiracy theory, but the state appeals court reversed for insufficient evidence. Id. at 1402. Relying on the basic principles of double jeopardy, the Sixth Circuit on habe-as review held that because the prosecution acquiesced in the jury instructions it was the party responsible for the deliberate action which terminated the trial without a verdict on the particular theory with which it had charged Saylor and upon which it now sought retrial. The court then held that double jeopardy barred retrial. Id. at 1407-08; see also Sizemore v. Fletcher, 921 F.2d 667, 673 (6th Cir.1990) (double jeopardy may bar retrial if trial terminates for reasons of the prosecution’s making, citing Saylor.). In this case, these defendants underwent the burden and anxiety of a trial that the district court judge described as “long, expensive and divisive.” Mem.Op. at 4. (D.N.D. Jan. 6, 1990); cf. Green, 355 U.S. at 187, 78" }, { "docid": "8001838", "title": "", "text": "S.Ct. at 223. As the Saylor court stated: “We see no reason why the prosecution should be allowed to try a defendant again merely because it did not realize during the trial that the only theory of liability established by the evidence had not been [presented] to the jury.” Saylor, 845 F.2d at 1408. The court was worried that otherwise, the government could “indict on several counts or theories, present evidence on each of them, and then go to the jury only on selected ones, in effect holding the others in reserve for a subsequent or improved effort.” Id. In the situation in this case, as in Saylor, “the prosecution should bear the burden of the aborted outcome.” Id. at 1407. We hold that principles of double jeopardy, which serves “a constitutional policy of finality for the defendant’s benefit,” United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality), bars retrial for the assault charge when the government’s deliberate trial strategy caused the first trial to terminate without the jury passing upon that charge. The prosecution could have presented the original jury with the theory it now wishes to advance on retrial. The defendants in this case should not be required to “ ‘run the gauntlet’ a second time.” Ashe v. Swenson, 397 U.S. 436, 446, 90 S.Ct. 1189, 1195 (1970) (quoting Green, 355 U.S. at 190, 78 S.Ct. at 225). CONCLUSION The judgment of the district court is reversed and vacated with directions to dismiss the pending indictments. . Other issues litigated appear in United States v. Grey Bear, 836 F.2d 1086 (8th Cir.1987) (\"Grey Bear II\") (denying rehearing by the panel); United States v. Grey Bear, 863 F.2d 572 (8th Cir.1988) (en banc) (\"Grey Bear III\"); United States v. Grey Bear, 883 F.2d 1382 (8th Cir.1989) (“Grey Bear IV\"), cert. denied, 493 U.S. 1047, 110 S.Ct. 846, 107 L.Ed.2d 840 (1990). . Because of the en banc disposition, Grey Bear, Perez, and Jesse Cavanaugh stood convicted of perjury and witness tampering, Fox and Grey Bear with perjury, LaFuente with first degree" }, { "docid": "17704925", "title": "", "text": "a charge that had been properly presented in an indictment and emphasized at trial. In the present situation, by contrast, the “money or property” theory of mail fraud was omitted from the indictment, and the theory was expressly disavowed at trial. The prosecutor was unequivocal on this, telling the jury “This is is not a money case. When we talk about fraud, we are not talking about taking too much money from somebody or getting a little bit more money than you otherwise might have, we are talking about a fraud on a governmental process.” In Saylor we read United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65, as saying that trials which end inconclusively may sometimes be placed at one or another of two “poles” — one where trial proceedings are terminated inconclusively as a result of the defendant’s election, and the other where the proceedings end inconclusively as a result of the prosecutor’s action. At the first pole, reprosecution is allowed; at the second, it is barred by the Double Jeopardy Clause. The inconclusive outcome of the proceedings brought against Mr. Saylor on the accomplice theory fell between the two poles, we thought, but closer to the second than the first. But these poles have no relevance here, as we see it; proceedings against Mr. Davis on a “money or property” theory cannot fairly be said to have “terminated” because of the action or inaction of either party, no such proceedings having been initiated in the first place. This case does not fall between the metaphorical “poles” of Scott/Saylor; it is off the map entirely. Our conclusion that the case at bar is not governed by Saylor is strengthened, finally, by what we said in United States v. Stack, 853 F.2d 436 (6th Cir.1988)-a decision handed down three months after Say-lor. Like the case at bar, Stack involved the appeal of a mail fraud conviction obtained on an indictment that proved to have been defective because it included an intangible rights theory. In reversing the conviction in Stack we noted, citing Montana v. Hall," }, { "docid": "18737280", "title": "", "text": "sustain a charge of murder as an accomplice. On the other hand, this is not a standard “instructional error” case, either. The jury did not convict on an erroneous theory about accomplice liability. Rather, the jury did not convict on a theory of accomplice liability at all, since that issue was not included in the charge to the jury. In “instructional error” cases we know that the jury thought there was sufficient evidence to convict on the offense charged because the jury returned a guilty verdict. However, due to a procedural error, the defendant is entitled to a retrial. See, e.g., Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960). Here, we have no notion what the jury thought about the evidence concerning the accomplice liability count because the issue never was offered for the jury’s consideration. Thus, the analytical difficulty in this case arises from the fact that Saylor neither was convicted nor was acquitted on the crucial theory of murder as an accomplice. Had he been convicted on that theory, as he was on the theory of murder by conspiracy, he certainly could be retried if the conviction was reversed for a procedural reason. In such a scenario, the jury would have found a factual basis for the conviction, but an appellate court, determining that a significant procedural error had occurred during the proceedings, would reverse the conviction and order a retrial. A reversal under such circumstances, however, effectively prevents the “jeopardy” attached to the first trial from ending. Consequently, a retrial in such a situation simply would involve the same jeopardy which was attendant to the first trial, and therefore, would not have the effect of putting Saylor in a “second” or “double” jeopardy of being convicted of murder as an accomplice. Conversely, had the accomplice liability theory been presented to the jury and had the jury acquitted Saylor, the original jeopardy attendant to the first trial clearly would have terminated, and Saylor could not, under any circumstances, be tried again on that theory of liability for the murder without being twice" }, { "docid": "1937308", "title": "", "text": "between the alleged mailings and the scheme to defraud for the indictment to stand. Such “subordinate” evidence need not be included in the indictment “unless there is no conceivable evidence that the Government could produce at trial to substantiate its [causation] allegation.” Id. In this case, if the government had presented the grand jury with charges based on a money or property loss theory, and presented the grand jury with evidence to support that theory, we might be persuaded that the indictment for RICO conspiracy insofar as it was based on predicate acts of mail and wire fraud was sufficient, even without allegations of actual money or property losses to support the theory. However, we have carefully reviewed the government’s submissions and find no indication that it proceeded on such a theory. It is clear that the grand jury indicted the defendants for scheming to deprive the pension fund of its right to its employees’ “honest, faithful, prudent and diligent services” by receiving kickbacks. Furthermore, the government conceded at oral argument that it was impossible, even at the time of trial, to know whether the pension fund suffered any actual losses. As we stated in our recent opinion in Asher, yost-McNally cases can be separated into those where the convictions were upheld because the fraudulent scheme resulted in a money or property loss and those where the conviction was based entirely on an intangible rights theory and the jury instructions “could not assure that money or property interests were implicated,” necessitating a reversal under McNally principles. Asher, 854 F.2d at 1490. This case is in the latter category. Although Count One of the indictment alleges a money or property loss, it is clear that the mail and wire fraud charges were based, and the jury solely instructed on, an intangible rights theory. Our conclusion is supported by the trial and jury charge in this case. Review of the record demonstrates that the government’s theory throughout the trial was that the defendants committed mail and wire fraud by scheming to defraud the pension fund by receiving kickbacks from Omni’s profits. We" }, { "docid": "8001837", "title": "", "text": "The jury was instructed only on the theory of conspiracy to commit murder despite considerable evidence showing culpability as an ac complice. The jury convicted on the conspiracy theory, but the state appeals court reversed for insufficient evidence. Id. at 1402. Relying on the basic principles of double jeopardy, the Sixth Circuit on habe-as review held that because the prosecution acquiesced in the jury instructions it was the party responsible for the deliberate action which terminated the trial without a verdict on the particular theory with which it had charged Saylor and upon which it now sought retrial. The court then held that double jeopardy barred retrial. Id. at 1407-08; see also Sizemore v. Fletcher, 921 F.2d 667, 673 (6th Cir.1990) (double jeopardy may bar retrial if trial terminates for reasons of the prosecution’s making, citing Saylor.). In this case, these defendants underwent the burden and anxiety of a trial that the district court judge described as “long, expensive and divisive.” Mem.Op. at 4. (D.N.D. Jan. 6, 1990); cf. Green, 355 U.S. at 187, 78 S.Ct. at 223. As the Saylor court stated: “We see no reason why the prosecution should be allowed to try a defendant again merely because it did not realize during the trial that the only theory of liability established by the evidence had not been [presented] to the jury.” Saylor, 845 F.2d at 1408. The court was worried that otherwise, the government could “indict on several counts or theories, present evidence on each of them, and then go to the jury only on selected ones, in effect holding the others in reserve for a subsequent or improved effort.” Id. In the situation in this case, as in Saylor, “the prosecution should bear the burden of the aborted outcome.” Id. at 1407. We hold that principles of double jeopardy, which serves “a constitutional policy of finality for the defendant’s benefit,” United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality), bars retrial for the assault charge when the government’s deliberate trial strategy caused the first trial to terminate without" }, { "docid": "4687512", "title": "", "text": "the defendant may be retried because in such situations the guilty verdict indicates that there was sufficient evidence to convict on the offense charged. Id. at 1404. The failure of the jury to convict Saylor of accomplice liability was not the result of a factual error in the instructions, but in the failure of the prosecution to request an instruction on the accomplice theory. Further, the court explained that: [although there is no evidence that the prosecutor acted deliberately, permitting a retrial in this case or in any similar case would be fraught with the possibility of manipulation. A prosecutor could indict on several counts or theories, present evidence on each one of them, and then go to the jury only on selected ones, in effect holding the others in reserve for a subsequent or improved effort. Id. at 1408 (emphasis added). The court analogized the situation in Saylor to a case reversed for prosecutorial misconduct which effectively terminates any retrial because the jury could have reached a decision had it not been for the misconduct. Consequently, the court found that the Double Jeopardy Clause forbids a second trial ... because such a trial would be vexatious, regardless of the jury’s deliberation on the theory charged to it. It would be vexatious because the defendant underwent the jeopardy of a full trial, ... and the trial failed to terminate in a verdict for reasons that cannot fairly be charged to the defendant. Id. Similarly, we are convinced that the government submitted only the intangible rights theory to the jury in the present action and that the liability of the defendants on the traditional and Klein theories terminated when the government failed to effectively pursue these theories with the jury. The government could have pursued these theories in separate counts in drafting the indictment or requested that special interrogatories be submitted to the jury on each theory. However, the government did not pursue these methods and included all theories in each count. The defendants in this action underwent a five-week trial and were forced to present evidence rebutting each theory. During" }, { "docid": "17704926", "title": "", "text": "Double Jeopardy Clause. The inconclusive outcome of the proceedings brought against Mr. Saylor on the accomplice theory fell between the two poles, we thought, but closer to the second than the first. But these poles have no relevance here, as we see it; proceedings against Mr. Davis on a “money or property” theory cannot fairly be said to have “terminated” because of the action or inaction of either party, no such proceedings having been initiated in the first place. This case does not fall between the metaphorical “poles” of Scott/Saylor; it is off the map entirely. Our conclusion that the case at bar is not governed by Saylor is strengthened, finally, by what we said in United States v. Stack, 853 F.2d 436 (6th Cir.1988)-a decision handed down three months after Say-lor. Like the case at bar, Stack involved the appeal of a mail fraud conviction obtained on an indictment that proved to have been defective because it included an intangible rights theory. In reversing the conviction in Stack we noted, citing Montana v. Hall, supra, 481 U.S. 400, 107 S.Ct. 1825, that “since the conviction is not reversed due to insufficient evidence the government is not precluded from indicting defendant on a permissible theory of mail fraud.” 853 F.2d at 438. By the same token, we now hold, the government was not precluded from indicting defendant Davis on a permissible theory of mail fraud. Ill Purporting to forego, in his prior appeal, any claim of what he there characterized as “trial error,” Mr. Davis advanced as his first argument in the earlier appeal a contention that “the evidence at trial was insufficient to prove beyond a reasonable doubt the existence of the alleged scheme to defraud.” We never reached that issue, and Mr. Davis now contends that our failure to make a specific finding on the sufficiency of the evidence ought to bar any retrial. We are not persuaded. It is true that in Delk v. Atkinson, 665 F.2d 90 (6th Cir.1981), a habeas corpus case that did not involve a direct appeal from a federal conviction, we observed" }, { "docid": "17704918", "title": "", "text": "concerned, is where the reversal is based on insufficiency of the evidence.” We nonetheless held, in Saylor, that where the defendant had been tried on an indictment that embodied two distinct legal theories (guilt by reason of acts performed as an accomplice and guilt by reason of acts performed as a conspirator), one of which theories (conspiracy) proved to be unsupported by the evidence and the other of which was inexplicably ignored in the instructions to the jury, the Double Jeopardy Clause barred a retrial on the uninstructed theory after the judgment entered against the defendant on the other theory had been reversed. The evidence introduced in support of the accomplice theory — the theory omitted in the trial court’s charge to the jury — may have been legally sufficient to support a convic tion. Because we were prepared to apply the Double Jeopardy Clause in Saylor notwithstanding the sufficiency of the evidence supporting the theory on which a retrial was sought, Mr. Davis argues (without conceding the sufficiency of the evidence against him in this case) that we ought to do the same thing here. If Saylor was decided correctly (and Judge Kinneary doubted that it was), Mr. Davis’s argument has a certain superficial appeal despite the obvious distinction arising from the fact that our reversal of the Davis conviction turned on the inadequacy of the original indictment, while the reversal of the Saylor conviction had nothing to do with any defect in the indictment. We were concerned in Saylor about setting a precedent that would allow a prosecutor to “indict on several counts or theories, present evidence on each of them, and then go to the jury only on selected ones, in effect holding the others in reserve for a subsequent or improved effort” if the jury should fail to convict on the theory or theories actually submitted to it. 845 F.2d at 1408. Perhaps we ought to be equally concerned about setting a precedent that would allow a prosecutor to obtain an indictment on one theory (defrauding the electorate of an intangible right to honest government, e.g.)" }, { "docid": "17704919", "title": "", "text": "this case) that we ought to do the same thing here. If Saylor was decided correctly (and Judge Kinneary doubted that it was), Mr. Davis’s argument has a certain superficial appeal despite the obvious distinction arising from the fact that our reversal of the Davis conviction turned on the inadequacy of the original indictment, while the reversal of the Saylor conviction had nothing to do with any defect in the indictment. We were concerned in Saylor about setting a precedent that would allow a prosecutor to “indict on several counts or theories, present evidence on each of them, and then go to the jury only on selected ones, in effect holding the others in reserve for a subsequent or improved effort” if the jury should fail to convict on the theory or theories actually submitted to it. 845 F.2d at 1408. Perhaps we ought to be equally concerned about setting a precedent that would allow a prosecutor to obtain an indictment on one theory (defrauding the electorate of an intangible right to honest government, e.g.) and let the case go to a jury on that theory, while holding in reserve a second theory (defrauding an identifiable individual of money or property) in order to get a subsequent bite at the apple if the jury failed to convict the first time. In the factual situation presented here, such a concern would be unwarranted. If the jury had found Mr. Davis innocent of the offense with which he was charged in the original indictment, we do not believe for a moment that he could have been retried for the same offense on the theory embodied in the superseding indictment. The theories are different, to be sure, but there is a necessary logical nexus between them, and the conduct that would have to be proved in order to obtain a conviction would be the same under both indictments. That was not the situation in Saylor; in that case we thought there was no necessary logical nexus between the two theories,” and it seems clear from our opinion that if Mr. Saylor had been" }, { "docid": "18737297", "title": "", "text": "is even more vexatious than the aborted or partial trials usually involved in double jeopardy cases, see 15 Yale L.J. at 288 n. 125; accord Scott, 437 U.S. at 99-101, 98 S.Ct. at 2198, and the trial failed to terminate in a verdict for reasons that cannot fairly be charged to the defendant. IV These principles lead us to conclude that the circumstances of Saylor’s conviction, and of the subsequent reversal of that conviction, entitle Saylor to the protection of the Double Jeopardy Clause against further prosecution for this murder under an accomplice theory of liability. We emphasize, however, that we do not hold that the evidence was legally insufficient in this case to have convicted Saylor of liability as an accomplice to murder. Indeed, the very reason his conviction for murder involving conspiracy was overturned by the state supreme court was because nearly all the evidence introduced at trial focused on Say-lor’s accomplice liability. Had the jury been presented with the accomplice theory, a guilty verdict could not have been overturned on the ground that it was unsupported by legally sufficient evidence. Rather, our conclusion is based on the fact that jeopardy had attached in Saylor’s trial and that right up until the moment that the jury’s verdict was announced , Saylor was in considerable jeopardy of being convicted of murder as an accomplice. The state had the option of presenting the jury with a number of theories of criminal liability. It chose to present the jury with the conspiracy theory and, whether inadvertently or not, it failed to present the jury with the accomplice theory, despite the fact that it clearly could have done so. The prosecution’s failure to request, and the judge’s failure to give instructions on a particular theory of criminality cannot, nunc pro tunc, erase the defendant’s jeopardy. Thus, Saylor already has been in jeopardy of being convicted of accomplice liability for murder. The state had its opportunity to put its best proof and theories of criminality before the jury and it is not entitled to a second chance. Accordingly, the petition for a writ" }, { "docid": "5261652", "title": "", "text": "is impossible to tell which ground the jury selected.” Yates v. United States. Citing Yates, we determined that the defendants’ convictions could not be upheld because there was no way to tell on which theory the jury had rested its verdict and the Government failed to prove that the honest services charge extended to the defendants’ conduct. But we did not consider any other means of fraud alleged. We could not have been clearer that our reversal was premised narrowly and solely on the failure of the honest services charge, stating: “This opinion should not be read to suggest that no dishonest, fraudulent, wrongful, or criminal act has occurred. We hold only that the alleged conduct is not a federal crime under the honest-services theory of fraud specifically.” The opinion implicitly, if not explicitly, recognized the possibility that criminal wrongdoing might be proved in a retrial, as we noted that “the Government must turn to other statutes, or even the wire fraud statutes absent the component of honest services, to punish this character of wrongdoing.” Brown I thus did not on its face preclude a retrial on the money or property charge because the panel did not rule that the evidence for that charge was insufficient. Nor are we persuaded by Bayly and Furst that the panel’s footnote reference to Enron as a “willing beneficiary” precludes a theory of Enron as a victim for all purposes. First, this contention does not account for the Enron shareholders, who were also alleged in the indictment to be victims apart from the corporation. Second, as part of the honest services discussion in Brown I, the “willing beneficiary” language was used to narrow the construction of honest services fraud to exclude the defendant’s conduct and to distinguish the case. The decision did not consider other avenues alleged for conviction, and instead noted that we “need not address the viability of the Government’s remaining theories of criminal liability (the money-or-property and books-and-records charges).” Enron was thus not excluded by the decision in Brown I as a victim for purposes of those charges. Brown’s contention that" }, { "docid": "7236396", "title": "", "text": "Justice Ginsburg delivered the opinion of the Court. In Skilling v. United States, decided today, ante, p. 358, we vacated the Court of Appeals judgment and remanded the case because the indictment rested, in part, on an improper construction of the “honest services” component of the federal ban on mail fraud, 18 U. S. C. §§ 1341, 1346. A similar infirmity is present in this case. Here, too, the Government and trial court advanced an interpretation of § 1346 rejected by the Court’s opinion in Skilling. Nevertheless, the Government urges, the convictions of the defendants below, petitioners here, should be affirmed for an independent reason. At trial, the Government pursued alternative theories: (1) money-or-property fraud; and (2) honest-services fraud. To pinpoint whether the jury based its verdict on money-or-property fraud, or honest-services fraud, or both, the Government proposed special interrogatories to accompany the verdict. The defendants resisted, preferring an unelaborated general verdict, and the Government ultimately acquiesced in that standard form of submission. The Court of Appeals held that the defendants, by opposing the Government-suggested special interrogatories, forfeited their objection to the honest-services-fraud instructions given to the jury. 530 F. 3d 596, 603 (CA7 2008). We reverse that ruling. A criminal defendant, we hold, need not request special interrogatories, nor need he acquiesce in the Government’s request for discrete findings by the jury, in order to preserve in full a timely raised objection to jury instructions on an alternative theory of guilt. I Petitioners Conrad Black, John Boultbee, and Mark Kipnis, as well as Peter Atkinson, (collectively, Defendants) were leading executives of Hollinger International, Inc. (Hollinger), a publicly held U. S. company that, through subsidiaries, owned newspapers here and abroad. In 2005, the Government indicted Defendants on multiple counts, of prime concern here, three counts of mail fraud in violation of §§1341 and 1346. Two theories were pursued by the Government on each mail-fraud count. The Government charged that (1) Defendants stole millions from Hollinger by fraudulently paying themselves bogus “noncompetition fees”; and that (2) by failing to disclose their receipt of those fees, Defendants deprived Hollinger of their honest" }, { "docid": "4687510", "title": "", "text": "of both the Court of Appeals and the Supreme Court to address this issue. In essence, the defendants are asking this court to give appellate review to the decision of the trial court finding that the evidence was sufficient on these issues. Because of the lack of any specific direction from the Supreme Court or the Court of Appeals on the issue of retrial, this court shall reserve the sufficiency of the evidence question for resolution by an appellate court should this Court’s order be appealed. In any event, this court will address the double jeopardy issue which is appropriately before us and is dispositive of the motions to dismiss and the motion for retrial. The most convincing double jeopardy argument of the defendants involves the recent Sixth Circuit decision of Saylor v. Cornelius, 845 F.2d 1401 (6th Cir.1988). In Saylor, the defendant was indicted on three theories of murder in separate counts, i.e., liability as a principal, an accomplice, and as a conspirator. At trial, considerable evidence was introduced on the accomplice theory but there was a lack of evidence on the principal and conspirator theories. The trial judge instructed the jury on only the murder and conspiracy theories and no instruction was given on the accomplice theory. The prosecution did not object to the instructions. Id. at 1402. On appeal, the state appellate court reversed the conviction and remanded the case for retrial on the accomplice theory because the instructional error only was involved. Id. at 1402. However, upon appeal of a later habeas petition, the Sixth Circuit held that the retrial was barred by the double jeopardy clause of the fifth amendment. Id. at 1408-09. The opinion contains an extensive examination of the principles and purposes underlying the double jeopardy clause. Once jeopardy has attached a defendant may not be retried upon the occurrence of a mistrial not based on “manifest necessity”, an acquittal of the charge, or upon a reversal based upon insufficient evidence. Id. at 1405. However, in most cases where the defendant is found guilty and the conviction is reversed for an instructional error," }, { "docid": "18737279", "title": "", "text": "it is black-letter law that when a conviction is reversed for trial error, the defendant may be retried. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 720, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969). Neither of these paradigms is persuasive, however. The “insufficiency of the evidence” principle is meant to insure that the prosecution only gets one bite at putting on its best factual case. See Burks, 437 U.S. at 11, 98 S.Ct. at 2147; accord Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). When that attempt proves to be legally insufficient, the state cannot get another opportunity to seek a conviction. Here, however, there was no finding by the state appellate court that the evidence was insufficient to convict on a proper charge. Rather, that court simply found that no such charge ever was given. Thus, Saylor cannot extricate himself from a retrial based only on the fact that the evi dence was held by the Kentucky Supreme Court to be legally insufficient to sustain a charge of murder as an accomplice. On the other hand, this is not a standard “instructional error” case, either. The jury did not convict on an erroneous theory about accomplice liability. Rather, the jury did not convict on a theory of accomplice liability at all, since that issue was not included in the charge to the jury. In “instructional error” cases we know that the jury thought there was sufficient evidence to convict on the offense charged because the jury returned a guilty verdict. However, due to a procedural error, the defendant is entitled to a retrial. See, e.g., Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960). Here, we have no notion what the jury thought about the evidence concerning the accomplice liability count because the issue never was offered for the jury’s consideration. Thus, the analytical difficulty in this case arises from the fact that Saylor neither was convicted nor was acquitted on the crucial theory of murder as an accomplice. Had he been convicted on" }, { "docid": "4687511", "title": "", "text": "there was a lack of evidence on the principal and conspirator theories. The trial judge instructed the jury on only the murder and conspiracy theories and no instruction was given on the accomplice theory. The prosecution did not object to the instructions. Id. at 1402. On appeal, the state appellate court reversed the conviction and remanded the case for retrial on the accomplice theory because the instructional error only was involved. Id. at 1402. However, upon appeal of a later habeas petition, the Sixth Circuit held that the retrial was barred by the double jeopardy clause of the fifth amendment. Id. at 1408-09. The opinion contains an extensive examination of the principles and purposes underlying the double jeopardy clause. Once jeopardy has attached a defendant may not be retried upon the occurrence of a mistrial not based on “manifest necessity”, an acquittal of the charge, or upon a reversal based upon insufficient evidence. Id. at 1405. However, in most cases where the defendant is found guilty and the conviction is reversed for an instructional error, the defendant may be retried because in such situations the guilty verdict indicates that there was sufficient evidence to convict on the offense charged. Id. at 1404. The failure of the jury to convict Saylor of accomplice liability was not the result of a factual error in the instructions, but in the failure of the prosecution to request an instruction on the accomplice theory. Further, the court explained that: [although there is no evidence that the prosecutor acted deliberately, permitting a retrial in this case or in any similar case would be fraught with the possibility of manipulation. A prosecutor could indict on several counts or theories, present evidence on each one of them, and then go to the jury only on selected ones, in effect holding the others in reserve for a subsequent or improved effort. Id. at 1408 (emphasis added). The court analogized the situation in Saylor to a case reversed for prosecutorial misconduct which effectively terminates any retrial because the jury could have reached a decision had it not been for the" }, { "docid": "8001835", "title": "", "text": "being driven at Peltier while he lay on the road. This is all instructions 34 and 37 required. The jury could have found the defendants innocent of the separate charge of assault (by the alleged beatings) resulting in serious bodily injury, and yet under the government’s theory of the case, as well as the court’s instructions, the jury could have found all of the defendants implicated in the assault and run-over by the LaFuente vehicle. We also reject the government’s request for a retrial because of the manner in which the trial court and the government chose to proceed in the original trial. Upon the return of the verdict, the court discharged the jury without it reaching a verdict on the assault charge. Cf. Green, 355 U.S. 184, 190-91, 78 S.Ct. 221, 225 (1957). The jury failed to do so because of the government's strategy in abandoning the assault count in attempting to obtain a second degree murder conviction. “Questions regarding retrial after the discharge of a jury without a verdict are not to be decided by a rigid application of mechanical formulae.” United States ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034, 1043 (3d Cir.1975). In this case, the trial ended without a factual determination of guilt or innocence on the assault charge, and we look closely at precisely why the trial terminated without the jury reaching a verdict on the charge. Had the trial terminated because of a deliberate election by the defendant, double jeopardy would not bar retrial. See United States v. Scott, 437 U.S. 82, 96, 99, 98 S.Ct. 2187, 2196, 2198 (1978). In contrast, when the trial terminates without a determination of guilt or innocence on a charge as a result of a deliberate, tactical decision by the prosecution, we examine whether the interests protected by double jeopardy principles would be offended by a retrial. Saylor v. Cornelius, 845 F.2d 1401 (6th Cir.1988), illustrates this approach. In Saylor, the defendant was indicted on one count of murder, which encompassed theories of culpability as a principal, as an accomplice, and as a conspirator." }, { "docid": "18737295", "title": "", "text": "the only theory of liability established by the evidence had not been charged to the jury. What we have here is a failure to convict as a result of a legal inadequacy rather than a factual one. From one perspective, this case is quite similar to the classic situation in which a second trial is not permitted because the first jury could have reached a decision, had it not been for illegitimate prosecutorial behavior. See 15 Yale L.J. at 287 & n. 123. In this case the prosecution’s action, though not affirmatively illegitimate, certainly was in error. Just as the British empire was said to have been obtained in “a fit of absentmindedness,” the prosecutor here, in a similar “fit of absentmindedness,” effectively terminated Saylor’s liability for being an accomplice to murder. Although there is no evidence that the prosecutor here acted deliberately, permitting a retrial in this case or in any similar case would be fraught with the possibility of manipulation. A prosecutor could indict on several counts or theories, present evidence on each of them, and then go to the jury only on selected ones, in effect holding the others in reserve for a subsequent or improved effort. If Saylor could be retried on a theory on which no verdict was reached because it was not charged, it would seem that such a retrial should be available no matter what the outcome on the count that was charged. As there is no necessary logical nexus between the two theories contained in the indictment, a retrial might be permitted whether Saylor was convicted and the conviction affirmed, convicted and the conviction reversed for procedural error, convicted and the conviction reversed for insufficiency (the case here — a functional acquittal on the conspiracy theory), or, in fact acquitted. We believe that the Double Jeopardy Clause forbids a second trial on the accomplice liability theory because such a trial would be vexatious, regardless of the outcome of the jury’s deliberation on the theory charged to it. It would be vexatious because the defendant underwent the jeopardy of a full trial, which" }, { "docid": "17704920", "title": "", "text": "and let the case go to a jury on that theory, while holding in reserve a second theory (defrauding an identifiable individual of money or property) in order to get a subsequent bite at the apple if the jury failed to convict the first time. In the factual situation presented here, such a concern would be unwarranted. If the jury had found Mr. Davis innocent of the offense with which he was charged in the original indictment, we do not believe for a moment that he could have been retried for the same offense on the theory embodied in the superseding indictment. The theories are different, to be sure, but there is a necessary logical nexus between them, and the conduct that would have to be proved in order to obtain a conviction would be the same under both indictments. That was not the situation in Saylor; in that case we thought there was no necessary logical nexus between the two theories,” and it seems clear from our opinion that if Mr. Saylor had been indicted and tried on one theory only, he might, as we saw it, have been subject to a later trial on the second theory regardless of the outcome of the first trial. 845 F.2d at 1408. Judge Kinneary emphasized another distinction between this case and Saylor: the Saylor prosecutor was asleep at the switch (or so we assumed) when he failed to request that the jury be charged on the conspiracy theory, but no comparable fault could be attributed to the Davis prosecutor in deciding to base the indictment of Mr. Davis on an “intangible rights” theory alone. That decision was perfectly legitimate when made, the intangible rights theory having been endorsed by this court only weeks before in the very case that was ultimately to produce the McNally decision. United States v. Gray, 790 F.2d 1290 (6th Cir.1986), rev’d sub nom. McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). This court has been wrong before, of course, but the prosecutor is not to be faulted for assuming we" }, { "docid": "4687509", "title": "", "text": "the conspiracy count and the traditional theory under the substantive count were not truly considered by the jury and that the intangible rights theory was the primary theory considered by the jury. The government was inconsistent in arguing that the conviction on the substantive count should be upheld on the traditional theory while conceding that the conspiracy count would fail even if the intangible rights theory of mail fraud should be rejected. Although the government’s position is supported by the Stromberg case when a Court is unable to determine the particular object of a conspiracy because of a general verdict, Stromberg, 283 U.S. at 367, 51 S.Ct. at 535, this statement is added support for the determination that the intangible rights theory was the primary and only real theory presented to the jury. DISCUSSION The defendants have stated at least two grounds in support of their motions to dismiss: insufficient evidence on the remain ing theories and double jeopardy. This court is hesitant to rule upon the sufficiency of evidence claim because of the refusal of both the Court of Appeals and the Supreme Court to address this issue. In essence, the defendants are asking this court to give appellate review to the decision of the trial court finding that the evidence was sufficient on these issues. Because of the lack of any specific direction from the Supreme Court or the Court of Appeals on the issue of retrial, this court shall reserve the sufficiency of the evidence question for resolution by an appellate court should this Court’s order be appealed. In any event, this court will address the double jeopardy issue which is appropriately before us and is dispositive of the motions to dismiss and the motion for retrial. The most convincing double jeopardy argument of the defendants involves the recent Sixth Circuit decision of Saylor v. Cornelius, 845 F.2d 1401 (6th Cir.1988). In Saylor, the defendant was indicted on three theories of murder in separate counts, i.e., liability as a principal, an accomplice, and as a conspirator. At trial, considerable evidence was introduced on the accomplice theory but" } ]

[ { "docid": "22720100", "title": "", "text": "with the Court’s desire to protect public defenders, who represent indigent defendants in good faith, from a §1983 suit by every dissatisfied client. But the Court’s concern for public defender programs — and its seeming hostility to the merits of respondent’s claims, see ante, at 323-324, and n. 17 — do not justify the approach taken by the Court today. To recognize that public defenders act under color of state law would not transform every legal malpractice into a constitutional violation. Cf. Estelle v. Gamble, 429 U. S., at 106-106. Presumably, some immunity would be provided public defenders sued under § 1983. The Court always has seen fit before to rely on immunity and the procedures available for dismissing meritless complaints in order to protect state officials. See, e. g., Butz v. Economou, 438 U. S. 478, 507-508 (1978); cf. Ferri v. Ackerman, 444 U. S. 193, 200, n. 17 (1979). I would do the same here. I would affirm the judgment of the Court of Appeals. The Court also says that a public defender’s ethical duties and obligations are the same as those of a privately retained lawyer and concludes that the public defender serves “essentially a private function ... for which state office and authority are not needed.” Ante, at 319. The fact that a state official’s role is parallel to one in the private sector, however, has never before deterred the Court from holding that the former is action under color of state law. Section 1983 is meant to proscribe certain actions by state officials even though identical conduct by private persons is not included within the statute’s scope. Cf. Estelle v. Gamble, 429 U. S. 97 (1976); see also Griffin v. Maryland, 378 U. S. 130, 135 (1964) (“If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity. . .”). Although Griffin involved “state action” under the Fourteenth Amendment, “state action” and “under color of state law”" } ]

[ { "docid": "12758825", "title": "", "text": "his race. Since the club was operating pursuant to a liquor license issued by the Pennsylvania Liquor Control Board and was subject to detailed regulations by the Pennsylvania Board, the plaintiff argued that sufficient “state action” was present to establish a violation of his Fourteenth Amendment rights. The Court rejected the “state action” claim, observing: “The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever. Since state-furnished services include such necessities of life as electricity, water, and police and fire protection, such a holding would utterly emasculate the distinction between private as distinguished from state conduct set forth in The Civil Rights Cases, supra, and adhered to in subsequent decisions. Our holdings indicate that where the impetus for the discrimination is private, the State must have ‘significantly involved itself with invidious discriminations’, Reitman v. Mulkey, 387 U.S. 369, 380 [87 S.Ct. 1627, 1634, 18 L.Ed.2d 830] (1967), in order for the discriminatory action to fall within the ambit of the constitutional prohibition.” 407 U.S. at 173, 92 S.Ct. at 1971. The requirement of state action was explained even more fully by the Supreme Court in Jackson v. Metropolitan Edison Comm., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). Suit was brought under § 1983 against a private utility company seeking an injunction and damages for the termination of plaintiff’s electrical services without notice, a hearing, or an opportunity to pay any amounts due. The claim of state action was based upon the following allegations: (1) the State had conferred monopoly status upon the utility company; (2) the utility performed a public service required to be supplied on a continuous basis under the law, hence performing a “public function”; and (3) the State “specifically authorized and approved” the termination practice. In holding that this was insufficient for a finding of state action under § 1983, the Supreme Court outlined" }, { "docid": "7779054", "title": "", "text": "uncriticized; and, if the commentators differ about which precedents to assail and which to defend, there is virtual unanimity regarding the lack of a coherent state action doctrine. The paucity of consistent principles makes any adjudication in this area difficult, particularly when, as is true here, the evidence adduced in the district court reasonably lends itself to varying interpretations. As the majority opinion demonstrates, two different approaches to the state action question might be applied here. First, it might be argued that state regulation of harness racing in Pennsylvania is so pervasive, and the relationship between the Commonwealth and the private racetracks so interdependent, that the acts of the track are inseparable from the acts of the government. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). The question for resolution under such an analysis is whether a “symbiotic relationship” may be said to exist between Pennsylvania and its privately licensed racetracks. Although the majority declares that the state’s connections with Mountain Laurel are “decidedly more symbiotic” than was the state’s relationship to the public utility in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), it decides that the claimed interdependence is not sufficient to meet the symbiotic relationship test. “We cannot say,” the majority concludes, “that every act of Mountain Laurel is an act of the State.” Majority opinion, supra, at 596. This position accords with that taken by the Court of Appeals for the Fifth Circuit in Fulton v. Hecht, 545 F.2d 540 (5th Cir.), cert. denied, 430 U.S. 984, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977). Although the question is a close one, I am persuaded by the majority’s reasoning that no symbiotic relationship exists here. The majority predicates its decision on the second approach, the “close nexus” test of Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). It is from this proposition that I primarily diverge from the majority. In Jackson, the Supreme Court, assessing whether a heavily regulated, privately owned utility company’s termination of" }, { "docid": "18484312", "title": "", "text": "prerogative of the state.” Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982)). See also Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966) (private trustees who operated public park in racially discriminatory manner were state actors); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) (private organization conducting pre-primary elections for the purpose of sending candidates to primary election was state actor). Cf. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (private utility company did not act under color of state law despite the fact that it was heavily regulated by the state and held at least a partial monopoly); Rendellr-Baker v. Kohn, supra (private school engaged in the education of maladjusted high school students did' not perform an exclusively public function because state’s policy of funding the school in no way made school’s services the exclusive province of the state). The second test considers whether “the private party has acted with the help of or in concert with state officials.” Mark, 51 F.3d at 1142 (quoting McKeesport Hospital v. Accreditation Council for Graduate Medical Ed., 24 F.3d 519 (3d Cir.1994)). See also Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (private party who, pursuant to state statute, conducted prejudgment attachment of another person’s property was state actor under § 1983); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (conspiracy between a private party and a state official to engage in unlawful discrimination constituted action “under color of state law” for purposes of § 1983 liability). The third test, or “symbiotic relationship” test, inquires whether “[t]he State has so far insinuated itself into a position of interdependence with ... [the acting party] that it must be recognized as a joint participant in the challenged activity.” Mark, supra, at 1142 (quoting Krynicky, 742 F.2d at. 98 and Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)" }, { "docid": "11420629", "title": "", "text": "defendant in Espinoza were paid employees of a state governmental unit. This factor is important, for private attorneys appointed to defend indigents have regularly been held not to be acting under the color of state iaw. French v. Corrigan, 432 F.2d 1211 (7th Cir.), cert. denied, 401 U.S. 915, 91 S.Ct. 890, 27 L.Ed.2d 814 (1970); accord, O’Brien v. Colbath, 465 F.2d 358 (5th Cir. 1972); Lefcourt v. Legal Aid Society, 445 F.2d 1150 (2d Cir. 1970); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968). As stated in French, the distinguishing factor is that the appointed attorneys “were not functionaries of the state but were proceeding in their private capacity.” French, supra at 1214. Thus being a state functionary or an employee of a state instrumentality must be considered an important factor and prevents using cases such as French as precedent for the proposition that a state public defender does not act under color of state law. Although the district court agreed that Espinoza applied, two of the three cases on which that holding is founded are factually distinguishable. And while the district court may be correct in stating that the state has no right to direct the manner’ in which the public defender represents his client, the fact that Bergstrom is employed by a state instrumentality — here the county public defender’s office — may be a sufficient basis to hold that state action is present. To make this determination it is necessary to look beyond the few cases concerned with public defenders to those relating to the state action question under different circumstances. Most of the cases dealing with the state action issue involve claims against ostensibly private institutions, instrumentalities, or persons, which are alleged to be subject to a section 1983 claim because of extensive state regulation or statutory delegation of a public function, e. g., Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477, or significant financial assistance, e. g., Cannon v. Univ. of Chicago, supra, or because of conspiracy with state officials, e. g, Potenza v. Schoessling, 541 F.2d" }, { "docid": "11420630", "title": "", "text": "is founded are factually distinguishable. And while the district court may be correct in stating that the state has no right to direct the manner’ in which the public defender represents his client, the fact that Bergstrom is employed by a state instrumentality — here the county public defender’s office — may be a sufficient basis to hold that state action is present. To make this determination it is necessary to look beyond the few cases concerned with public defenders to those relating to the state action question under different circumstances. Most of the cases dealing with the state action issue involve claims against ostensibly private institutions, instrumentalities, or persons, which are alleged to be subject to a section 1983 claim because of extensive state regulation or statutory delegation of a public function, e. g., Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477, or significant financial assistance, e. g., Cannon v. Univ. of Chicago, supra, or because of conspiracy with state officials, e. g, Potenza v. Schoessling, 541 F.2d 670 (7th Cir. 1976). See generally, Note, State Action in the Seventh Circuit, 59 Marq.L.Rev. 809 (1976). The difficulty with an analysis of the situation here is that we are presented with the reverse argument, that an employee of a clearly state-related instrumentality is not acting under color of state law because he exercises a private function. It appears, therefore, that the “unitary nexus” test enunciated in Jackson v. Metropolitan Edison Co., supra, or any test involving an ostensibly “private” defendant, see Cannon v. Univ. of Chicago, supra, may not be proper in this context. The “nexus” test requires not only proof of significant state regulation but also that there be a sufficiently close nexus between the challenged action and the state. If this test is applied in the public defender context it is possible, because of the latter requirement, that a public defender could be held not to be acting under color of state law. A recent line of cases in the Third Circuit provides guidance in determining whether the test utilized in Jackson" }, { "docid": "16196383", "title": "", "text": "at 2753. Second, the person who did the depriving must have been a “state actor,” that is, a state official or someone acting on behalf or in conjunction with the state. Id. As Gorenc’s § 1983 claim is based on a constitutional right of due process, for purposes of this case the “state action” requirement of the Fourteenth Amendment and the statutory requirement of action “under color of state law” of a § 1983 claim are identical. Id. at 929, 935 n. 18, 102 S.Ct. at 2749-50, 2752-53 n. 18. The United States Supreme Court has articulated four different factors or tests to determine state action without determining whether these different tests are actually different in operation or simply different ways of characterizing the necessary fact-bound inquiry. Id. at 939, 102 S.Ct. at 2754-55. 1. “Nexus” Test The nexus test inquiry asks “whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so the action of the latter may be fairly treated as that of the state itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). In Jackson, the Court held that the termination of electrical services by a privately owned utility was action by a private actor and not the state even though the company was subject to extensive state regulation. Id. at 350-51, 95 S.Ct. at 453. The company’s monopoly status and the essential public service it provided were not enough to confer state action. Id. at 351-53, 95 S.Ct. at 454. The supplying of a utility service has not traditionally been the exclusive prerogative of the state, id. at 353-54, 95 S.Ct. at 455, nor does the regulation of utilities in the state, including the filing and approval by the State of the general tariff which contained the termination provision complained of, make the State in “any realistic sense a partner or even a joint venturer in the [ ] enterprise.” Id. at 357-58, 95 S.Ct. at 457 (quoting Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176-77, 92" }, { "docid": "7779055", "title": "", "text": "was the state’s relationship to the public utility in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), it decides that the claimed interdependence is not sufficient to meet the symbiotic relationship test. “We cannot say,” the majority concludes, “that every act of Mountain Laurel is an act of the State.” Majority opinion, supra, at 596. This position accords with that taken by the Court of Appeals for the Fifth Circuit in Fulton v. Hecht, 545 F.2d 540 (5th Cir.), cert. denied, 430 U.S. 984, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977). Although the question is a close one, I am persuaded by the majority’s reasoning that no symbiotic relationship exists here. The majority predicates its decision on the second approach, the “close nexus” test of Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). It is from this proposition that I primarily diverge from the majority. In Jackson, the Supreme Court, assessing whether a heavily regulated, privately owned utility company’s termination of service to a customer was state action, held that “the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Id. at 351, 95 S.Ct. at 453. In this case, the majority concludes that the Jackson test is satisfied because “the presiding racing judge and racing secretary, acting in their official capacities, participated in the decision to expel Fitzgerald.” Majority Opinion, supra, at 599 (emphasis in original; citation omitted). I believe that this application of Jackson to the facts of this case is incorrect. Further, I am concerned that today’s decision might Lead to an unprecedented degree of federal constitutional control over a broad range of heretofore private transactions. The hearings conducted by the district court revealed that Mountain Laurel and the Pennsylvania State Harness Racing Commission each possess independent, though often complementary, authority over racetrack operations. The Commission is charged with establishing rules and regulations governing" }, { "docid": "14950922", "title": "", "text": "the lease obligated “the hospital corporation to serve the general public, to admit indigent patients, to abide by the provisions of the Hospital Survey and Construction Act, to provide the county auditor with a yearly financial report (and any other information requested), and to obtain county approval before disposing of hospital property.” Id. at 881. Nevertheless, the court found these factors to be typical lessor-lessee provisions and insufficient to create a symbiotic relationship. The court in Greco relied on the Supreme Court’s holding in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). In Jackson, the Court rejected the argument that the extensive state regulation of a monopolistic utility converted the utility’s conduct into state action. In finding that disconnecting a customer’s service without a hearing was not state action, the Court noted “the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Id. at 351, 95 S.Ct. at 453. The Supreme Court has continued to impose a nexus requirement between the challenged action and the asserted connection to the state. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 2771, 73 L.Ed.2d 418 (1982) (finding even though private school had close connection to state because state funds constituted 90% of operating budget, “decisions to discharge [employees] were not compelled or even influenced by any state regulation” and, thus, not under color of state law); Blum v. Yaretsky, 457 U.S. 991, 1011, 102 S.Ct. 2777, 2789, 73 L.Ed.2d 534 (1982) (“That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible for decisions made by the entity in the course of its business.”). Despite the funding and regulatory connections, Kraft has failed to demonstrate an actual connection between her dismissal, the challenged action, and the state." }, { "docid": "2055775", "title": "", "text": "the state and federal activity — providing the funds in exchange for which the free services were to be provided. It further held that furnishing hospital services for the poor was considered to be a state duty by Tennessee and therefore the hospital was performing a state function. See 453 F.Supp. at 419-22. In Burton, supra, the Supreme Court found state action through the symbiotic relationship between the state agency and the private entity. The private entity was a privately owned restaurant that leased space from a publicly owned parking building, which had been built with public funds, enjoyed tax exemptions, and on which were flown the state and national flags. Customers of the restaurant parked in the public structure, parking customers used the restaurant. The restaurant was open to the public. The Court found that physically and financially the restaurant was an integral part of a public building and that the state was a joint participant in its operation. Therefore, the Court held that when the restaurant refused to serve someone on account of race, that was state action. The Supreme Court did not find state action in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). The inquiry, said the Court, must be whether or not there is a sufficiently close nexus between the state and the challenged activity of the regulated entity so that the action of the latter may be fairly treated as that of the state itself. See 419 U.S. at 351, 95 S.Ct. at 453. The Court refused to hold that the actions of a privately owned utility constituted state action despite its being heavily regulated by the state or that it might have had a monopoly granted by the state. The Court also refused to find that the actions of the utility were state actions even though the utility was performing an essential public service. There may be state action where a private entity exercises power traditionally reserved to the states, but in Jackson, the state imposed the duty to provide service to all upon the private" }, { "docid": "13623063", "title": "", "text": "claim is based on the alleged failure of defendant Cheney to investigate the plaintiff’s charge that he was being deprived by the PSB and VEC of his constitutional right to a hearing. In order for an action under § 1986 to lie, the plaintiff must sufficiently establish a violation of § 1985. Turner v. Baxley, 354 F.Supp. 963, 973 (D.Vt.1972); Johnston, supra at 909-910. Section 1986 refers specifically to wrongs “conspired to be done, and mentioned in section 1985.” As previously discussed, the plaintiff’s § 1985(2) claim is deficient due to the failure to allege the essential element of class-based discrimination; therefore, the § 1986 claim against the defendant Cheney must likewise be dismissed. II—Motion for Judgment on the Pleadings The plaintiff’s complaint requests injunctive and declaratory relief and money damages against the defendant VEC under 42 U.S.C. §§ 1983 and 1985(2) (1970) and under Vermont common law. VEC has filed a motion request ing judgment on the pleadings on the basis of two alternative theories: (1) that the defendant VEC did not act “under color of state law” when terminating the plaintiff’s electric service, and (2) that electric service does not constitute “property” within the meaning of the Fourteenth Amendment. We disagree, and deny VEC’s motion for judgment on the pleadings. One of the requisite elements of a § 1983 cause of action is that the defendants acted under color of state law. 42 U.S.C. § 1983 (1970); Kletschka, supra at 447. In the recent decision of Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), the Supreme Court found that the action of a privately owned and operated Pennsylvania corporation, with a certificate of public convenience, which was subject to extensive regulation by the Pennsylvania Public Utility Commission, was not acting under color of state law when it terminated the electric service of one of its customers. The Court stated that the appropriate test in that situation for determining whether that utility’s conduct constituted state action under the Fourteenth Amendment was: (W)hether there was a sufficiently close nexus between the State and" }, { "docid": "22854092", "title": "", "text": "candidates to the primary election, engaged in an exclusive public function. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953). See also Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966) (public park could not be operated with racial restriction even when trustees had no connection to city government). •However, the Court came increasingly to emphasize the “exclusivity” aspect of the test, and rarely found that plaintiffs had met that rigorous standard. Thus, in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), the Court held that a private utility company, extensively regulated by the state, arid apparently holding at least a partial monopoly in its territory, did not act under color of state law, in part because the state where the utility was engaged in business had “rejected the contention that the furnishing of utility services is either a state function or a municipal duty.” Id. at 353, 95 S.Ct. at 454. Similarly, in Rendell-Baker v. Kohn, the Court held that a private entity engaged in the education of maladjusted high school students did not perform an exclusively public function because “[the state’s] legislative policy choice [to fund the private school] in no way makes these services the exclusive province of the State.” 457 U.S. at 842, 102 S.Ct. at 2772; see also Black v. Indiana Area Sch. Dist., 985 F.2d 707, 710-11 (3d Cir.1993) (private contractor providing state school bus program at state expense not performing exclusive state function). In sum, the exclusive public function test rarely could be satisfied. The second discrete inquiry asks whether “the private party has acted with the help of or in concert with state officials.” McKees-port Hospital v. Accreditation Council for Graduate Medical Ed., 24 F.3d 519, 524 (3d Cir.1994). Thus, in Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), the Court held that a conspiracy between a private party anda state official to engage in unlawful discrimination constituted action “ ‘under color’ of law for purposes of the statute.”" }, { "docid": "13623064", "title": "", "text": "color of state law” when terminating the plaintiff’s electric service, and (2) that electric service does not constitute “property” within the meaning of the Fourteenth Amendment. We disagree, and deny VEC’s motion for judgment on the pleadings. One of the requisite elements of a § 1983 cause of action is that the defendants acted under color of state law. 42 U.S.C. § 1983 (1970); Kletschka, supra at 447. In the recent decision of Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), the Supreme Court found that the action of a privately owned and operated Pennsylvania corporation, with a certificate of public convenience, which was subject to extensive regulation by the Pennsylvania Public Utility Commission, was not acting under color of state law when it terminated the electric service of one of its customers. The Court stated that the appropriate test in that situation for determining whether that utility’s conduct constituted state action under the Fourteenth Amendment was: (W)hether there was a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. Jackson, supra at 351, 95 S.Ct. at 453. In finding that such a nexus did not exist, the Court held that the granting of a monopoly status by the state, the nature of the service provided, and the pro forma approval of the utility’s tariff providing for the method of termination under attack, were together insufficient to transform the action of Metropolitan Edison Co. into that of the State of Pennsylvania. Jackson, supra at 351-357, 95 S.Ct. 449. We believe that the facts herein alleged are sufficiently distinguishable from those in Jackson to find that state action is adequately found on the face of the pleadings. Mr. Justice Rehnquist, in refuting Jackson’s contention that the Pennsylvania Commission's approval of Metropolitan Edison’s termination practice was state action, clearly indicated that a different situation arises when the state regulatory agency has ordered the termination: Approval by a state utility commission of such a" }, { "docid": "18484311", "title": "", "text": "person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws ... In determining whether a defendant acted under “color of state law” for purposes of § 1983, courts employ the same analysis used in determining whether an individual is a “state actor” within the meaning of the Fourteenth Amendment. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769-70, 73 L.Ed.2d 418 (1982); Krynicky v. University of Pittsburgh, 742 F.2d 94, 97 (3d Cir.1984), cert. denied, 471 U.S. 1015,105 S.Ct. 2018, 85 L.Ed.2d 300 (1985). Vorsheck and Edwards contend that they cannot be liable under § 1983 because they did not act under color of state law. “The Supreme Court in varying circumstances appears to utilize three discrete tests to determine whether there has been state action.” Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir.), cert. denied, — U.S. —, 116 S.Ct. 165, 133 L.Ed.2d 107 (1995). The first test inquires whether “the private entity has exercised powers that are traditionally the exclusive prerogative of the state.” Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982)). See also Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966) (private trustees who operated public park in racially discriminatory manner were state actors); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) (private organization conducting pre-primary elections for the purpose of sending candidates to primary election was state actor). Cf. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (private utility company did not act under color of state law despite the fact that it was heavily regulated by the state and held at least a partial monopoly); Rendellr-Baker v. Kohn, supra (private school engaged in the education of maladjusted high school students did' not perform an exclusively public function because state’s policy of funding the school in no way made school’s services the exclusive province of the state). The second test considers whether “the private party has acted" }, { "docid": "13057651", "title": "", "text": "employees objected to the disclosure of their names and addresses to the Golden Mean Society members. Instead, Georgia Power sought to amend the consent order. The court eventually vacated the consent order and the TRO on the ground that the passage of time and accompanying publicity concerning the demonstrators’ objectives had substantially reduced the danger of any significant work stoppage. Plaintiffs then filed this § 1983 action claiming damages for violation of the First and Fourteenth Amendments to the United States Constitution. The decision in this case turns on whether Georgia Power Company acted under color of state law when it obtained the TRO from the state court. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). The statutory “under color of law” requirement is equivalent, although not identical, to the constitutional doctrine of state action. Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Where a private party acting either jointly with or through state officials becomes so allied with the state as “to characterize that party as a ‘state actor’ for purposes of the Fourteenth Amendment,” the private party is held to have acted under color of state law. Lugar, 457 U.S. at 941, 102 S.Ct. at 2756. The law is clear in two respects. First, the activity of a heavily regulated public utility does not amount to state action simply because it is engaged in a Government-regulated business. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (no state action found where all plaintiff proved was that the utility was heavily regulated with a partial monopoly and that it elected to terminate plaintiff’s service in a manner allowed by state regulation). In Fulton v. Hecht, 545 F.2d 540 (5th Cir.), cert. denied, 430 U.S. 984, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977), a greyhound breeder and racer brought a § 1983 action against the partners of a private kennel club for their failure to renew his booking contract. He claimed state action was present because the" }, { "docid": "12251710", "title": "", "text": "enjoyment by the hospital of tax exemptions, its regulation by the state and its performance of a public function” in addition to receipt of Hill-Burton funds, are proper grounds for holding that it acted under color of state law with respect to 42 U.S.C. § 1983. Chrisman, 506 F.2d at 312-314. There is one significant difference between the present case and Chris-man, supra, namely, the fact that St. Vincent’s Hospital had the only maternity department in Billings, Montana, where the plaintiff could secure a tubal ligation at the time of her cesarean delivery. In Chrisman the hospital involved was not the only hospital in Eugene, Oregon, to supply such services. As a result, in Chrisman, it was not necessary to consider whether the “state action” might be found from the fact that the hospital was the only one in the area able to supply the services above. However, the Supreme Court in Jackson v. Metropolitan Edison Company, 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), decided about a month after this court decided Chrisman, held that private conduct may not be regarded as that of the state unless the state is involved in the specific activity complained of, and that the monopoly status of a private utility company did not in itself or in combination with state regulation and the fact that an essential public service was involved, constitute “state action.” There the Supreme Court in upholding the district court and the affirmation by the Third Circuit, stated: “All of petitioner’s arguments taken together show no more than that Metropolitan was a heavily regulated private utility, enjoying at least a partial monopoly in the providing of electrical service within its territory, and that it elected to terminate service to petitioner in a manner which the Pennsylvania Public Utilities Commission found permissible under state law. Under our decision this is not sufficient to connect the State of Pennsylvania with respondent’s action so as to make the latter’s conduct attributable to the State for the purposes of the Fourteenth Amendment.” (419 U.S. p. 358, 95 S.Ct. p. 457). With respect" }, { "docid": "7566442", "title": "", "text": "572 F.2d 121 (3d Cir.1978); Albach v. Odle, 531 F.2d 983 (10th Cir.1976). In light of these precedents, TSSAA cannot be considered a state actor under the public function test. 2. State compulsion The state compulsion test requires that the party seeking to establish state action prove that the state has so coerced or encouraged a private entity to act that the choice of that entity must be regarded as the choice of the state. See Wolotsky, 960 F.2d at 1335. As detailed in Part II.B. above, the state of Tennessee’s interaction with TSSAA has been minimal. The state’s most significant involvement with TSSAA was the now-repealed Board of Education rule “designating” TSSAA to conduct interscholastic activities. The Supreme Court has made clear, however, that designation alone is not enough to turn a private actor into a state actor. In Jackson v. Metropolitan Edison, 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), a customer whose power was turned off for non-payment argued that he was entitled to a hearing under the Due Process Clause of the Fourteenth Amendment. The Court held that even though Pennsylvania had granted the power company a monopoly and the public utility board had explicitly authorized the regulations in question, there was no state action because the state had not directed or ordered that the customer’s power be terminated. See id. at 358, 95 S.Ct. 449. The state of Tennessee has far less contact with TSSAA than Pennsylvania had with Metropolitan Edison. The Pennsylvania legislature granted Metropolitan Edison a monopoly, heavily regulated it, and had a state oversight board that actually approved the power shut-off regulations. In the present case, the Tennessee legislature has never even mentioned TSSAA, much less given it any special authority. As a result, Brentwood has failed to establish that TSSAA is a state actor under the state compulsion test. 3. Symbiotic relationship The remaining and therefore dis-positive question is whether TSSAA is a state actor under the “symbiotic relationship” test. See Wolotsky, 960 F.2d at 1335. A symbiotic relationship exists when there is “a sufficiently close nexus between the" }, { "docid": "22854091", "title": "", "text": "a sufficiently close nexus between the State and the challenged action of [Enterprise] so that the action of the latter may be fairly treated as that of the State itself.” Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. at 2786 (internal citation omitted). The Supreme Court in varying circumstances appears to utilize three discrete tests to determine whether there has been state action. See Haavistola v. Community Fire Co. of Rising Sun, 6 F.3d 211, 215 (4th Cir.1993). The first inquiry asks whether “the private entity has exercised powers that are traditionally the exclusive prerogative of the state.” Blum v. Yaretsky, 457 U.S. at 1004-05, 102 S.Ct. at 2786 (emphasis added) (internal citation omitted). Years ago, the Court applied this test somewhat liberally, holding, for example, that a town owned by a private company performs a public function and therefore is a state actor, see Marsh v. Alabama, 326 U.S. 501, 507, 66 S.Ct. 276, 279, 90 L.Ed. 265 (1946), and that a private organization conducting pre-primary elections for the purpose of sending its candidates to the primary election, engaged in an exclusive public function. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953). See also Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966) (public park could not be operated with racial restriction even when trustees had no connection to city government). •However, the Court came increasingly to emphasize the “exclusivity” aspect of the test, and rarely found that plaintiffs had met that rigorous standard. Thus, in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), the Court held that a private utility company, extensively regulated by the state, arid apparently holding at least a partial monopoly in its territory, did not act under color of state law, in part because the state where the utility was engaged in business had “rejected the contention that the furnishing of utility services is either a state function or a municipal duty.” Id. at 353, 95 S.Ct. at 454. Similarly, in Rendell-Baker v. Kohn, the Court held" }, { "docid": "16223009", "title": "", "text": "services which have been rendered under the program. In providing funds to assist participating states to furnish necessary medical services to qualified individuals, see Title XIX § 1901, 42 U.S.C. § 1396, Congress has established an administrative structure which provides, inter alia, for state assistance of Medicaid recipients receiving care or services in “private or public institutions,” see Title XIX § 1902(a)(9)(B), 42 U.S.C. § 1396a(a)(9)(B). The plaintiff asserts that by virtue of defendant Manor Care’s, voluntary participation in the Medicaid program through a contract’ with the State of Ohio and its certification as a provider of Medicaid services by the federal and state governments, the nursing home’s proposed transfer or discharge of the plaintiff constitutes action under color of state law, 42 U.S.C. § 1983, and state action within the meaning of the Fourteenth Amendment to the Constitution, as required to render defendant Manor Care liable to suit thereunder. This concept of state action “has been found to be virtually synonymous with the ‘under color of state law’ requirement of § 1983, United States v. Price, 383 U.S. 787, 794-95 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966);” Turner v. Impala Motors, 503 F.2d 607, 609 (6th Cir. 1974). A determination of the presence or absence of state action in the challenged conduct of defendant Manor Care requires an examination of the relationship between the state and federal governments on the one hand, and this private defendant on the other, as it pertains to the specific action complained of by the plaintiff. In the words of the Supreme Court, in declining to find state action in the activities of a public utility heavily regulated by the state and required by statute to provide service to consumers, The inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. Jackson v. Metropolitan Edison Company, 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974), citing Moose Lodge No. 107 v." }, { "docid": "2055776", "title": "", "text": "race, that was state action. The Supreme Court did not find state action in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). The inquiry, said the Court, must be whether or not there is a sufficiently close nexus between the state and the challenged activity of the regulated entity so that the action of the latter may be fairly treated as that of the state itself. See 419 U.S. at 351, 95 S.Ct. at 453. The Court refused to hold that the actions of a privately owned utility constituted state action despite its being heavily regulated by the state or that it might have had a monopoly granted by the state. The Court also refused to find that the actions of the utility were state actions even though the utility was performing an essential public service. There may be state action where a private entity exercises power traditionally reserved to the states, but in Jackson, the state imposed the duty to provide service to all upon the private company, not upon itself. The public function doctrine was explained further in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). The public function exception only applies to those functions which were exclusively reserved to the states traditionally. Many functions have been traditionally performed by governments, but few have been exclusively reserved to the states, such as conducting elections and providing all the municipal services of a town. In the present case, the record does not show that Tennessee ever exclusively reserved to itself the function of providing free hospital services to those unable to pay. Nor has the federal government ever exclusively reserved to itself this function. Indeed, the regulations existing before 1973 noted that funds for the free services could come from private contributions. Thus, the District Court erred in finding state action based upon the public function exception. There remains the question whether or not there is a sufficiently close nexus between the state action and the activities of the hospital in providing the services or" }, { "docid": "13182837", "title": "", "text": "Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357-358, 95 S.Ct. 449, 456-57, 42 L.Ed.2d 477. That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible for decisions made by the entity in the course of its business. Id. at 2789 (emphasis added). The Court specifically concluded that nursing homes do not perform a function that falls within the exclusive prerogative of the state. Id. at 2789-90. The Court stated: We are also unable to conclude that the nursing homes perform a function that has been “traditionally the exclusive prerogative of the State.” Jackson v. Metropolitan Edison Co., supra, at 353, 95 S.Ct., at 454.... Even if respondents’ characterization of the State’s duties were correct, however, it would not follow that decisions made in the day-to-day administration of a nursing home are the kind of decisions traditionally and exclusively made by the sovereign for and on behalf of the public. Indeed, respondents make no such claim, nor could they. Id. (emphasis added). In Blum the Supreme Court likened the nursing home situation to the public defender situation in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). Blum v. Yaretsky, 102 S.Ct. at 2788. The Court explained: This case, therefore, is not unlike Polk County v. Dodson, ... in which the question was whether a public defender acts “under color of” state law within the meaning of 42 U.S.C. § 1983 when representing an indigent defendant in a state criminal proceeding. Although the public defender was employed by the State and appointed by the State to represent the respondent, we concluded that “[t]his assignment entailed functions and obligations in no way dependent on state authority.”. .. The decisions made by the public defender in the course of representing his client were framed in accordance with professional canons of ethics, rather than dictated by any rule of conduct imposed by the State. The same is true of nursing home" } ]

[ { "docid": "3277384", "title": "", "text": "judge’s chambers. After this question-and-answer session, the court found that AWH was afraid of the defendant and of testifying in front of the jury in the large courtroom. It found that this fear rendered AWH unable to testify in open court and therefore, pursuant to 18 U.S.C. § 3509(b)(l)(B)(i), it held that she could testify from a separate room by two-way closed-circuit television. The sixth amendment’s confrontation clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. We review de novo the district court's determination of the protections afforded by the confrontation clause, while we review the underlying factual determinations for clear error. Cf. United States v. Powell, 379 F.3d 520, 523 (8th Cir.2004). The Supreme Court sketched the contours of the confrontation right in cases like this in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). In that case, the Court rejected a confrontation clause challenge to a Maryland, statute that allowed a child witness in a sex abuse case to testify via a one-way closed-circuit television (which does not allow the witness to view the defendant) under certain circumstances. Id. at 860, 110 S.Ct. 3157. It explained that the confrontation clause “reflects a preference for face-to-face confrontation at trial,” but that this preference “must occasionally give way to considerations of public policy and the necessities of the case.” Id. at 849, 110 S.Ct. 3157 (internal quotations omitted). The Court emphasized, however, that the preference is a strong one and that a defendant’s sixth amendment confrontation right “may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 850, 110 S.Ct. 3157. Craig sets out three findings that must be made in a case like the present one to establish that the case sufficiently implicates an important public policy (“protecting child witnesses from the trauma of testifying in a child abuse case”)" } ]

[ { "docid": "9018100", "title": "", "text": "is no suggestion of such misconduct in this case; we point this out only to show that physical confrontation serves purposes other than permitting cross-examination and allowing the jury to see the witness's face. It also bears noting that no procedural mechanism exists for employing a video procedure in the manner it was employed here. Federal Rule of Criminal Procedure 26 requires that, absent certain circumstances, \"[i]n every trial the testimony of witnesses must be taken in open court.\" The Judicial Conference once suggested a revision to Rule 26 that would have allowed testimony by two-way video in special circumstances, but the Supreme Court declined to transmit the proposed revision to Congress. Order of the Supreme Court , 207 F.R.D. 89, 91-92 (2002). Justice Scalia filed a statement explaining that he \"share[d] the majority's view\" that the proposal was \"of dubious validity under the Confrontation Clause,\" as it failed to \"limit the use of testimony via video transmission to instances where there has been a 'case-specific finding' that it is 'necessary to further an important public policy.' \" Id. at 93 (statement of Scalia, J.) (citing Craig , 497 U.S. at 850, 857-58, 110 S.Ct. 3157 ). Although Justice Scalia's statement is not controlling, his reasoning supports our conclusion that Craig supplies the governing standard when the defendant is deprived of \"a physical, face-to-face confrontation at trial,\" 497 U.S. at 850, 110 S.Ct. 3157. Further support for our view comes from other circuits addressing this issue, which have held that Craig 's two-part test applies to the use of two-way video testimony. See United States v. Yates , 438 F.3d 1307, 1313-15 (11th Cir. 2006) (en banc); United States v. Bordeaux , 400 F.3d 548, 554-55 (8th Cir. 2005) ; see also State v. Rogerson , 855 N.W.2d 495, 502-03 (Iowa 2014) (collecting decisions from several state courts holding that \" Craig [provides] the standard for assessing the constitutionality of two-way video testimony\"). We now join them and expressly hold that a defendant's right to \"physical, face-to-face confrontation at trial\" may be compromised by the use of a remote video" }, { "docid": "1232894", "title": "", "text": "confrontation, however, is not unlimited. “In sum, our precedents establish that the Confrontation Clause reflects a preference for face-to-face confrontation at trial, a preference that must occasionally give way to considerations of public policy and the necessities of the case.” Craig, 497 U.S. at 849, 110 S.Ct. 3157 (internal quotations and citations omitted) (emphasis in original). The Confrontation Clause, therefore, requires courts to balance the defendant’s rights and society’s interests. “[A] defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 850, 110 S.Ct. 3157. In Craig, the Court upheld a Maryland law providing for testimony by child victims of sexual abuse via closed circuit television. In so finding, the court held that the state’s asserted interest in “protecting children who are allegedly victims of child abuse,” id. at 852, 110 S.Ct. 3157, was sufficiently substantial to overcome a Confrontation Clause challenge provided that the court made case-specific findings as to the child’s need for such protections. Id. at 853-55, 110 S.Ct. 3157. Protection for children is not the only rationale for laws providing for remote testimony by child sex abuse victims, however. Another concern is the fear of the unreliability of the child’s testimony. As Justice Blackmun stated in dissent in Coy v. Iowa, “[T]he fear and trauma associated with a child’s testimony in front of the defendant have two serious identifiable consequences: They may cause psychological injury to the child, and they may so overwhelm the child as to prevent the possibility of effective testimony, thereby undermining the truth-finding function of the trial itself.” 487 U.S. 1012, 1032, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); see also Dorothy F. Marsil et al., Child Witness Policy: Law Interfacing With Social Science, 65 Law & Contemp. Probs. 209, 209 (2002) (“One problem confronting the courts is how to protect children from experiencing the psychological trauma resulting from a face-to-face confrontation with a defendant who may have physically" }, { "docid": "23377720", "title": "", "text": "known as the Confrontation Clause, “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857 (1988). This right to a physical face-to-face meeting, however, is not absolute and may be compromised under limited circumstances where “considerations of public policy and necessities of the case” so dictate. Craig, 497 U.S. at 848, 110 S.Ct. at 3165. At issue in this appeal is whether the district court’s findings demonstrate that denial of physical face-to-face confrontation was necessary to further an important public policy. In Craig, the Supreme Court upheld, over a defendant’s Sixth Amendment challenge, a Maryland rule of criminal procedure that allowed child victims of abuse to testify by one-way closed circuit television from outside the courtroom. 497 U.S. at 858, 110 S.Ct. at 3170. The defendant could see the testifying child witness on a video monitor, but the child witness could not see the defendant. Id. at 841-42, 110 S.Ct. at 3161. The defendant contended that this procedure violated his Sixth Amendment right to confrontation because he was denied a physical face-to-face encounter with the witness. Id. at 842, 110 S.Ct. at 3161-62. The Supreme Court approved Maryland’s rule, stating: “though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of .the Sixth Amendment’s guarantee of the right to confront one’s accusers.” Id. at 849-50, 110 S.Ct. at 3165-66. The Court held that “[t]he Confrontation Clause reflects a preference for face-to-face confrontation at trial, a preference that must occasionally give way to considerations of public policy and the necessities of the ease.” Id. at 849, 110 S.Ct. at 3165. The Court explained, “a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 850, 110 S.Ct. at 3166. The Government offers two arguments for why we" }, { "docid": "9018101", "title": "", "text": "public policy.' \" Id. at 93 (statement of Scalia, J.) (citing Craig , 497 U.S. at 850, 857-58, 110 S.Ct. 3157 ). Although Justice Scalia's statement is not controlling, his reasoning supports our conclusion that Craig supplies the governing standard when the defendant is deprived of \"a physical, face-to-face confrontation at trial,\" 497 U.S. at 850, 110 S.Ct. 3157. Further support for our view comes from other circuits addressing this issue, which have held that Craig 's two-part test applies to the use of two-way video testimony. See United States v. Yates , 438 F.3d 1307, 1313-15 (11th Cir. 2006) (en banc); United States v. Bordeaux , 400 F.3d 548, 554-55 (8th Cir. 2005) ; see also State v. Rogerson , 855 N.W.2d 495, 502-03 (Iowa 2014) (collecting decisions from several state courts holding that \" Craig [provides] the standard for assessing the constitutionality of two-way video testimony\"). We now join them and expressly hold that a defendant's right to \"physical, face-to-face confrontation at trial\" may be compromised by the use of a remote video procedure only upon a \"case-specific finding\" that (1) the denial of physical confrontation \"is necessary to further an important public policy,\" and (2) \"the reliability of the testimony is otherwise assured.\" Craig , 497 U.S. at 850, 857, 110 S.Ct. 3157. C Craig 's requirement of necessity was not met here. Although the district court concluded that J.C. was \"unavailable to travel to be physically present\" at trial, all agree that J.C.'s inability to travel was due to her pregnancy-a temporary disability. There were alternatives available to preserve Carter's right to physical face-to-face confrontation, meaning that denying him that right was not necessary. The most obvious alternative would have been to continue the trial in anticipation of J.C.'s recovery. See United States v. Jacobs , 97 F.3d 275, 281 (8th Cir. 1996) ; Peterson v. United States , 344 F.2d 419, 425 (5th Cir. 1965). As the government acknowledges in its brief, J.C. was unable to travel \"for the duration of her pregnancy (which was two months).\" Continuances have been granted in similar circumstances. See," }, { "docid": "1912091", "title": "", "text": "statements or restricts the scope of cross-examination, the Court has “never doubted ... that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.”). Despite the Confrontation Clause’s emphasis on physical, face-to-face confrontation, it is not an absolute right. Craig, 497 U.S. at 844-50, 110 S.Ct. 3157. The Supreme Court in Craig provided the following guidance for analyzing exceptions to physical confrontation: That the face-to-face confrontation requirement is not absolute does not, of' course, mean that it may be easily dispensed with. As we suggested in Coy, our precedents confirm that a defendant’s right to confront accusatory witnesses may be satisfied absent physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured. Id. at 850, 110 S.Ct. 3157 (citations omitted). Therefore, Craig stands for the proposition that a witness may testify out of an accused’s presence only where the trial court finds (1) that there is an important public interest that will be served by denying physical confrontation, (2) that such denial is necessary to further that interest, and (3) that other measures will ensure the reliability of the testimony. In Craig, the Court determined that society has an important public interest in “the physical and psychological well-being of a minor victim.” Id. at 852, 110 S.Ct. 3157. Hence, it held, “if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.” Id. at 855, 110 S.Ct. 3157. The Court also explained the essential aspects of a finding of necessity in cases where the physical or psychological well being of a child witness is at stake. The showing of necessity, determined the Court, must not be a generalized one. The trial judge must" }, { "docid": "1912090", "title": "", "text": "thus impressing him with the seriousness of the matter and guarding • against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for discovery of the truth’; [and] (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” Craig, 497 U.S. at 845-46, 110 S.Ct. 3157 (quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)). Although each of these protections serves to “ensure the reliability of the evidence against a criminal defendant,” the Court has stressed that an accused’s right to physical, face-to-face confrontation with witnesses against him forms the core of the Confrontation Clause. See id. at 844-50, 110 S.Ct. 3157; Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988)(noting that although there is “some room for doubt” about whether the clause protects against the admission of out-of-court statements or restricts the scope of cross-examination, the Court has “never doubted ... that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.”). Despite the Confrontation Clause’s emphasis on physical, face-to-face confrontation, it is not an absolute right. Craig, 497 U.S. at 844-50, 110 S.Ct. 3157. The Supreme Court in Craig provided the following guidance for analyzing exceptions to physical confrontation: That the face-to-face confrontation requirement is not absolute does not, of' course, mean that it may be easily dispensed with. As we suggested in Coy, our precedents confirm that a defendant’s right to confront accusatory witnesses may be satisfied absent physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured. Id. at 850, 110 S.Ct. 3157 (citations omitted). Therefore, Craig stands for the proposition that a witness may testify out of an accused’s presence only where the trial court finds (1) that there is an important" }, { "docid": "9018115", "title": "", "text": "Court \"see[s] fit to reconsider [it], regardless of whether subsequent cases have raised doubts about [its] continuing vitality.\" Bosse v. Oklahoma , --- U.S. ----, 137 S.Ct. 1, 2, 196 L.Ed.2d 1 (2016) (per curiam) (citation omitted). The Second Circuit has held that \"the Craig standard\" does not apply to two-way video procedures, reasoning that, unlike the one-way video in Craig , two-way video \"preserve[s] the face-to-face confrontation\" required by the Confrontation Clause. United States v. Gigante , 166 F.3d 75, 81 (2d Cir. 1999). Instead of applying Craig , the Second Circuit thought the \"more profitable comparison\" was to Federal Rule of Criminal Procedure 15, which permits the taking of an out-of-court deposition for use in trial in \"exceptional circumstances ... in the interest of justice.\"Id. (quoting Fed. R. Crim. P. 15(a) ). We agree with the Eighth and Eleventh Circuits that Gigante is an outlier and that the proper test is Craig . See Yates , 438 F.3d at 1313 ; Bordeaux , 400 F.3d at 555. Regardless of whether the video procedure is one-way or two-way, the defendant is being denied \"a physical, face-to-face confrontation at trial.\" Craig , 497 U.S. at 850, 110 S.Ct. 3157. And equating a two-way video procedure with face-to-face confrontation necessarily neglects the \"intangible elements\" of confrontation that, as even the Gigante court admits, may be \"reduced or even eliminated by remote testimony.\" 166 F.3d at 81. The government proposed taking J.C.'s deposition under Rule 15, and offered two-way video as an alternative. Carter objected to both proposals, expressing doubts that the deposition could be scheduled without interfering with the trial schedule. The district court rejected the proposed deposition without comment and granted the government's application to proceed by video. We express no opinion on whether the government could have satisfied the Confrontation Clause by deposing J.C. without Carter physically present, other than to note that the government is generally required to \"secure the defendant's actual, physical presence\" at a Rule 15 deposition and that we have excused this requirement only when fulfilling it would be \"impossibl[e].\" United States v. Medjuck ," }, { "docid": "23377719", "title": "", "text": "violated and that the witnesses were not given a proper oath. The admission of testimony by two-way video conference presents a mixed question of law and fact; therefore, we review de novo Defendants’ claim that their Sixth Amendment rights were violated. See Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 1900, 144 L.Ed.2d 117 (1999). The second issue we discuss is Defendants’ contention that the district court erred in denying their motions for judgment of acquittal on the ground that the evidence was insufficient to support their convictions. We review this ruling de novo. United States v. Pistone, 177 F.3d 957, 958 (11th Cir.1999). III. DISCUSSION A. The Confrontation Clause Defendants argue that admission of the video-conferenced testimony was not necessary to further an important public policy and thus violated the rule announced in Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666. The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. This clause, known as the Confrontation Clause, “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857 (1988). This right to a physical face-to-face meeting, however, is not absolute and may be compromised under limited circumstances where “considerations of public policy and necessities of the case” so dictate. Craig, 497 U.S. at 848, 110 S.Ct. at 3165. At issue in this appeal is whether the district court’s findings demonstrate that denial of physical face-to-face confrontation was necessary to further an important public policy. In Craig, the Supreme Court upheld, over a defendant’s Sixth Amendment challenge, a Maryland rule of criminal procedure that allowed child victims of abuse to testify by one-way closed circuit television from outside the courtroom. 497 U.S. at 858, 110 S.Ct. at 3170. The defendant could see the testifying child witness on a video monitor, but the child witness could not see the defendant. Id. at 841-42, 110 S.Ct. at 3161. The defendant contended that this" }, { "docid": "23377729", "title": "", "text": "is not the same as physical face-to-face confrontation. As our sister circuits have recognized, the two are not constitutionally equivalent. See, e.g., United States v. Bordeaux, 400 F.3d 548, 554-55 (8th Cir.2005). The Sixth Amendment’s guarantee of the right to confront one’s accuser is most certainly compromised when the confrontation occurs through an electronic medium. Indeed, no court that has considered the question has found otherwise; even the Gigante court acknowledged that, “the use of remote, closed-circuit television testimony must be carefully circumscribed.” United States v. Gigante, 166 F.3d 75, 80 (2d Cir.1999). As stated above, where a defendant’s right to confront a witness against him will be affected, the determination of whether a particular case requires a departure from usual. procedures must be made, by the trial court, on a case-by-case basis. Craig, 497 U.S. at 854, 110 S.Ct. at 3169. The court generally must: (1) hold an evidentiary hearing and (2) find: (a) that the denial of physical, face-to-face confrontation at trial is necessary to further an important public policy and (b) that the reliability of the testimony is otherwise assured. Id. at 850, 855, 110 S.Ct. at 3166, 3169. The first part of this test requires that the trial court find that it is essential to deny the defendant his right to face-to-face physical confrontation in order to serve the interest the government asserts. See, id. at 855, 110 S.Ct. at 3169 (stating that, in order to separate the witness and defendant, the problem must be the physical presence of the defendant during the witness’s testimony, not some other problem that could be remedied by a less intrusive solution). In this case, the district court applied the Craig test to permit the Australian witnesses to testify by two-way video conference broadcast on a television monitor at the trial convened in the United States Attorney’s Office in Montgomery, Alabama. (R.3-314.) However, it held no hearing to consider evidence of the necessity for the video conference testimony. Rather, the trial court allowed the two-way video testimony based' only on the Government’s assertions in its motion that the Australian witnesses" }, { "docid": "9018105", "title": "", "text": "be preferable to out-of-court testimony, a deposition would have at least preserved Carter's right to physical confrontation. See Fed. R. Crim. P. 15(a), (c)(1). Indeed, Craig itself notes that the \"denial of face-to-face confrontation would be unnecessary\" if the witness could testify elsewhere \"with the defendant present.\" 497 U.S. at 856, 110 S.Ct. 3157 ; see Yates , 438 F.3d at 1317 (finding no necessity where the defendants and witnesses could \"be placed in the same room for the taking of pre-trial deposition testimony pursuant to Rule 15\"). And if logistics prevented the government from securing Carter's physical presence at J.C.'s deposition while also maintaining the trial schedule, the court could have granted a brief continuance to allow the deposition to be completed with Carter present. Given these various alternatives, forgoing physical confrontation in favor of a two-way video procedure was not \"necessary.\" Craig , 497 U.S. at 850, 110 S.Ct. 3157. The government tries to overcome this conclusion by pointing to Federal Rule of Evidence 804, which permits the introduction of certain hearsay statements made prior to trial when the declarant is \"unavailable\" to testify in court because of \"a then-existing infirmity, physical illness, or mental illness.\" Fed. R. Evid. 804(a)(4), (b). As the government correctly observes, we have held that \"risks in late pregnancy, when attested to by a physician, are an 'infirmity' within the meaning of [ Rule 804(a)(4) ].\" United States v. McGuire , 307 F.3d 1192, 1205 (9th Cir. 2002). This argument suffers from two flaws. First, this case does not involve hearsay statements made prior to trial; J.C. gave live testimony during trial, albeit remotely. As a constitutional matter, the test for admitting out-of-court testimony is \"quite separate from\" the test adopted in Craig , which governs \"what in-court procedures are constitutionally required to guarantee a defendant's confrontation right once a witness is testifying.\" White v. Illinois , 502 U.S. 346, 358, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). If anything, our decision in McGuire only sharpens the point, as the hearsay testimony introduced in that case was videotaped testimony from the defendant's first" }, { "docid": "1232901", "title": "", "text": "the Confrontation Clause in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process. Craig, 497 U.S. at 849, 110 S.Ct. 3157 (quoting Bourjaily v. United States, 483 U.S. 171, 182, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (alteration in original) (emphasis added)); see also United States v. Yates, 438 F.3d 1307, 1320 (11th Cir.2006) (Tjoflat, J., dissenting) (en banc) (“It is beyond reproach that there is an important public policy in providing the fact-finder with crucial, reliable testimony and instituting procedures that ensure the integrity of the judicial process.” (collecting cases)). The Craig court continued, “there is evidence that [face-to-face] confrontation would in fact disserve the Confrontation Clause’s truth-seeking goal.” 497 U.S. at 857, 110 S.Ct. 3157 (emphasis in original) (collecting sources). Because the interest in providing reliable testimony is a result of the same fear and trauma that give rise to the state’s interest in protecting the witness from psychological injury, and because the state’s interest in reliable testimony is an important one, the court’s reliance on that interest does not constitute constitutional error so long as the court made the case-specific factual findings required by Craig. The trial court found that the reliability of the victim’s testimony in this case would be diminished as a result of the fear and trauma caused by a face-to-face confrontation with the defendant. In determining whether this harm was sufficient to overcome the constitutional preference for physical confrontation, we must follow the analysis in Craig, as modified for the state’s asserted interest. Craig requires the trial court seeking to avoid psychological harm to find that: (1) the procedure is necessary to protect the child’s welfare; (2) the child witness would be traumatized specifically by the presence of the defendant; and (3) the emotional distress the child witness would endure as a result of testifying is more than de minimis, i.e., more than mere nervousness or reluctance to testify. 497 U.S. at 855-56, 110 S.Ct. 3157. Of these prongs, only the first is directed at the probability that testimony would cause psychological injury to the" }, { "docid": "23288523", "title": "", "text": "confrontation rights. The Supreme Court has declared that “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). In Coy, the Court reversed the defendant’s conviction for sexual assault after a 13-year-old alleged victim was permitted to testify out of sight of the defendant. See id. at 1022, 108 S.Ct. 2798. However, the right to face-to-face confrontation is not absolute; in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Court held that one-way closed-circuit television testimony by a child witness in an abuse case may be permissible upon a case-specific finding of necessity. See id. at 857, 110 S.Ct. 3157. The Supreme Court explained that “[t]he central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Id. at 845, 110 S.Ct. 3157. The salutary effects of face-to-face confrontation include 1) the giving of testimony under oath; 2) the opportunity for cross-examination; 3) the ability of the fact-finder to observe demeanor evidence; and 4) the reduced risk that a witness will wrongfully implicate an innocent defendant when testifying in his presence. See id. at 845-46, 110 S.Ct. 3157. The closed-circuit television procedure utilized for Savino’s testimony preserved all of these characteristics of in-court testimony: Savino was sworn; he was subject to full cross-examination; he testified in full view of the jury, court, and defense counsel; and Savino gave this testimony under the eye of Gigante himself. Gigante forfeited none of the constitutional protections of confrontation. In Craig, the Supreme Court indicated that confrontation rights “may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Craig, 497 U.S. at 850, 110 S.Ct. 3157. Gigante seeks to hold the government to this standard, and challenges" }, { "docid": "23288524", "title": "", "text": "The salutary effects of face-to-face confrontation include 1) the giving of testimony under oath; 2) the opportunity for cross-examination; 3) the ability of the fact-finder to observe demeanor evidence; and 4) the reduced risk that a witness will wrongfully implicate an innocent defendant when testifying in his presence. See id. at 845-46, 110 S.Ct. 3157. The closed-circuit television procedure utilized for Savino’s testimony preserved all of these characteristics of in-court testimony: Savino was sworn; he was subject to full cross-examination; he testified in full view of the jury, court, and defense counsel; and Savino gave this testimony under the eye of Gigante himself. Gigante forfeited none of the constitutional protections of confrontation. In Craig, the Supreme Court indicated that confrontation rights “may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Craig, 497 U.S. at 850, 110 S.Ct. 3157. Gigante seeks to hold the government to this standard, and challenges the government to articulate the important public policy that was furthered by Savino’s testimony. However, the Supreme Court crafted this standard to constrain the use of one-way closed-circuit television, whereby the witness could not possibly view the defendant Because Judge Weinstein employed a two-way system that preserved the face-to-face confrontation celebrated by Coy, it is not necessary to enforce the Craig standard in this case. A more profitable comparison can be made to the Rule 15 deposition, which under the Federal Rules may be employed “[w]henever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial.” Fed. R.Crim.P. 15(a). That testimony may then be used at trial “as substantive evidence if the witness is unavailable.” Fed.R.Crim.P. 15(e). Unavailability is defined by reference to Rule 804(a) of the Federal Rules of Evidence, which includes situations in which a witness “is unable to be present or to testify at the hearing because of ... physical" }, { "docid": "1232893", "title": "", "text": "at all in ruling on Danner’s claim. See Danner, 525 U.S. at 1010, 119 S.Ct. 529 (Scalia, J., dissenting from denial of cert.) (“[Neither the trial court nor the Supreme Court so much as mentioned the Sixth Amendment.”). Any consideration of the Sixth Amendment contained within the state case law upon which the state courts relied is too attenuated to consider the Sixth Amendment claim to have been “adjudicated on the merits.” 28 U.S.C. § 2254(d). Therefore, the AEDPA standard of review does not apply and we review Danner’s constitutional challenge de novo. See Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003) (“Where, as here, the state court did not assess the merits of a claim properly raised in a habeas petition, the deference due under AEDPA does not apply. Instead, this court reviews questions of law and mixed questions of law and fact de novo.” (internal citation omitted)). The Sixth Amendment guarantees to a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const, amend. VI. The right of confrontation, however, is not unlimited. “In sum, our precedents establish that the Confrontation Clause reflects a preference for face-to-face confrontation at trial, a preference that must occasionally give way to considerations of public policy and the necessities of the case.” Craig, 497 U.S. at 849, 110 S.Ct. 3157 (internal quotations and citations omitted) (emphasis in original). The Confrontation Clause, therefore, requires courts to balance the defendant’s rights and society’s interests. “[A] defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 850, 110 S.Ct. 3157. In Craig, the Court upheld a Maryland law providing for testimony by child victims of sexual abuse via closed circuit television. In so finding, the court held that the state’s asserted interest in “protecting children who are allegedly victims of child abuse,” id. at 852, 110 S.Ct. 3157, was sufficiently substantial to overcome a Confrontation Clause challenge" }, { "docid": "9018104", "title": "", "text": "the eve of trial is not ideal. But a criminal defendant's constitutional rights cannot be neglected merely to avoid \"added expense or inconvenience.\" Green , 399 U.S. at 189 n.22, 90 S.Ct. 1930 (Harlan, J., concurring). We also realize that there may be some cases in which it is truly necessary to forgo physical confrontation at trial due to a witness's medical condition. See, e.g. , Horn v. Quarterman , 508 F.3d 306, 310, 320 (5th Cir. 2007) (finding Craig 's \"necessity-based exception\" satisfied on habeas review when the witness was \"terminally ill with cancer and being treated in [another state]\"). But in this case, the government did not even attempt to continue the trial, sever the counts, or both before resorting to a procedure that prevented Carter from confronting his accuser in person. \"The right of confrontation may not be dispensed with so lightly.\" Barber v. Page , 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). The government did suggest another possible alternative-deposing J.C. in Minnesota. Although live, in-person testimony would be preferable to out-of-court testimony, a deposition would have at least preserved Carter's right to physical confrontation. See Fed. R. Crim. P. 15(a), (c)(1). Indeed, Craig itself notes that the \"denial of face-to-face confrontation would be unnecessary\" if the witness could testify elsewhere \"with the defendant present.\" 497 U.S. at 856, 110 S.Ct. 3157 ; see Yates , 438 F.3d at 1317 (finding no necessity where the defendants and witnesses could \"be placed in the same room for the taking of pre-trial deposition testimony pursuant to Rule 15\"). And if logistics prevented the government from securing Carter's physical presence at J.C.'s deposition while also maintaining the trial schedule, the court could have granted a brief continuance to allow the deposition to be completed with Carter present. Given these various alternatives, forgoing physical confrontation in favor of a two-way video procedure was not \"necessary.\" Craig , 497 U.S. at 850, 110 S.Ct. 3157. The government tries to overcome this conclusion by pointing to Federal Rule of Evidence 804, which permits the introduction of certain hearsay statements" }, { "docid": "9018096", "title": "", "text": "sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court.\" Id. at 853, 110 S.Ct. 3157. But such cases would require a \"case-specific finding\" that the procedure is \"necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant\" when \"such trauma would impair the child's ability to communicate.\" Id. at 857-58, 110 S.Ct. 3157. The Court explained that the trial court would need to find that the witness would be traumatized by the defendant's presence in the courtroom, not from the courtroom generally, and that the trauma would rise to a level that is \"more than de minimis .\" Id. at 856, 110 S.Ct. 3157. B Craig involved one-way video testimony by a child witness, while this case involves two-way video testimony by an adult witness. The Supreme Court has not decided whether Craig 's standard applies in these circumstances, and until now we have applied Craig only in the context of 18 U.S.C. § 3509, a statute enacted in direct response to Craig that permits child witnesses to testify by two-way video. See United States v. Etimani , 328 F.3d 493, 499 (9th Cir. 2003) ; United States v. Quintero , 21 F.3d 885, 892 (9th Cir. 1994) ; United States v. Garcia , 7 F.3d 885, 888-89 (9th Cir. 1993). We now make clear that a defendant's right to physically confront an adverse witness (whether child or adult) cannot be compromised by permitting the witness to testify by video (whether one-way or two-way) unless Craig 's standard is satisfied. And that standard is a stringent one; the use of a remote video procedure must be reserved for rare cases in which it is \"necessary.\" Craig , 497 U.S. at 850, 110 S.Ct. 3157. Our conclusion follows directly from the \"core\" of the Confrontation Clause guarantee-providing the accused an \"opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact.\" Green , 399 U.S. at 156-57, 90 S.Ct. 1930. Not only does physical" }, { "docid": "9018097", "title": "", "text": "§ 3509, a statute enacted in direct response to Craig that permits child witnesses to testify by two-way video. See United States v. Etimani , 328 F.3d 493, 499 (9th Cir. 2003) ; United States v. Quintero , 21 F.3d 885, 892 (9th Cir. 1994) ; United States v. Garcia , 7 F.3d 885, 888-89 (9th Cir. 1993). We now make clear that a defendant's right to physically confront an adverse witness (whether child or adult) cannot be compromised by permitting the witness to testify by video (whether one-way or two-way) unless Craig 's standard is satisfied. And that standard is a stringent one; the use of a remote video procedure must be reserved for rare cases in which it is \"necessary.\" Craig , 497 U.S. at 850, 110 S.Ct. 3157. Our conclusion follows directly from the \"core\" of the Confrontation Clause guarantee-providing the accused an \"opportunity to challenge his accuser in a face-to-face encounter in front of the trier of fact.\" Green , 399 U.S. at 156-57, 90 S.Ct. 1930. Not only does physical confrontation at trial serve as a symbol of fairness, but it also promotes reliability, for \"[i]t is always more difficult to tell a lie about a person 'to his face' than 'behind his back.' \" Coy , 487 U.S. at 1019, 108 S.Ct. 2798. Compelling \"adverse witnesses at trial to testify in the accused's presence\" thus \"enhances the accuracy of factfinding\" at trial. Craig , 497 U.S. at 846-47, 110 S.Ct. 3157. So too does \"compelling [witnesses] to stand face to face with the jury\" as they tell their side of the story. Green , 399 U.S. at 158, 90 S.Ct. 1930 (quoting Mattox v. United States , 156 U.S. 237, 242, 15 S.Ct. 337, 39 L.Ed. 409 (1895) ). These important components of confrontation are lost when the witness is not testifying in court, regardless of the witness's age or ability to see the defendant on a screen from a distant location. Any procedure that allows an adverse witness to testify remotely necessarily diminishes \"the profound [truth-inducing] effect upon a witness of standing in" }, { "docid": "23377750", "title": "", "text": "jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” Maryland v. Craig, 497 U.S. 836, 845-46, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990) (citation omitted) (alteration in original) (quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970)). As such, “face-to-face confrontation ... is not the sine qua non of the confrontation right,” id. at 847, 110 S.Ct. at 3164, and “must occasionally give way to considerations of public policy and the necessities of the case,” id. at 849, 110 S.Ct. at 3165 (quoting Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895)) (internal quotation marks omitted). Specifically, the Supreme Court has held that “a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Craig, 497 U.S. at 850, 110 S.Ct. 3166. The majority applies this two-part test and finds the procedure used here lacking for several reasons. First, the public policies the district court found in “providing the fact-finder with crucial evidence,” and “expeditiously and justly resolving the case,” while “important public policies,” “are not the type of public policies that are important enough to outweigh the Defendants’ rights to confront their accusers face-to-face.” Ante at 1315 -1316. Second, the majority faults the district court for making “no case-specific findings of fact that would support a conclusion that this case is different from any other criminal prosecution in which the Government would find it convenient to present testimony by two-way video conference.” Ante at 1316. Finally, the court suggests that, because of the availability of a deposition pursuant to Rule 15, it was not “necessary to deny the defendant his right to a physical face-to-face confrontation.” Ante at 1316. Even assuming the majority has applied the correct constitutional test, I part ways with the majority’s" }, { "docid": "9018095", "title": "", "text": "100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) ). But the Court cautioned that \"the face-to-face confrontation requirement\" should not \"easily be dispensed with.\" Id. at 850, 110 S.Ct. 3157. Thus, the Court held that \"a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where\" (1) the \"denial of such confrontation is necessary to further an important public policy,\" and (2) \"the reliability of the testimony is otherwise assured.\" Id. at 850, 110 S.Ct. 3157. Armed with this two-part test, the Court turned to Maryland's video procedure. The Court first concluded that the procedure adequately ensured the \"reliability and adversariness\" of the testimony, as it \"preserve[d] all of the other elements of the confrontation right\"-the child witness had to be competent to testify under oath, the defendant could conduct live cross-examination, and everyone in the courtroom could observe the witness's demeanor. Id. at 851, 110 S.Ct. 3157. The Court further concluded that \"a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court.\" Id. at 853, 110 S.Ct. 3157. But such cases would require a \"case-specific finding\" that the procedure is \"necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant\" when \"such trauma would impair the child's ability to communicate.\" Id. at 857-58, 110 S.Ct. 3157. The Court explained that the trial court would need to find that the witness would be traumatized by the defendant's presence in the courtroom, not from the courtroom generally, and that the trauma would rise to a level that is \"more than de minimis .\" Id. at 856, 110 S.Ct. 3157. B Craig involved one-way video testimony by a child witness, while this case involves two-way video testimony by an adult witness. The Supreme Court has not decided whether Craig 's standard applies in these circumstances, and until now we have applied Craig only in the context of 18 U.S.C." }, { "docid": "9018102", "title": "", "text": "procedure only upon a \"case-specific finding\" that (1) the denial of physical confrontation \"is necessary to further an important public policy,\" and (2) \"the reliability of the testimony is otherwise assured.\" Craig , 497 U.S. at 850, 857, 110 S.Ct. 3157. C Craig 's requirement of necessity was not met here. Although the district court concluded that J.C. was \"unavailable to travel to be physically present\" at trial, all agree that J.C.'s inability to travel was due to her pregnancy-a temporary disability. There were alternatives available to preserve Carter's right to physical face-to-face confrontation, meaning that denying him that right was not necessary. The most obvious alternative would have been to continue the trial in anticipation of J.C.'s recovery. See United States v. Jacobs , 97 F.3d 275, 281 (8th Cir. 1996) ; Peterson v. United States , 344 F.2d 419, 425 (5th Cir. 1965). As the government acknowledges in its brief, J.C. was unable to travel \"for the duration of her pregnancy (which was two months).\" Continuances have been granted in similar circumstances. See, e.g. , United States v. Howard , 218 F.3d 556, 562-63 (6th Cir. 2000) (affirming a four-month \"continuance requested by the government on the ground that [a prosecution witness] had been hospitalized after going into premature labor and was therefore unavailable to testify\"). Another alternative would have been to sever the two counts involving J.C. while maintaining the scheduled trial date for the remaining counts. See, e.g. , Garris v. United States , 418 F.2d 467, 468-70 (D.C. Cir. 1969) (affirming severance of counts at the government's request when \"the necessary witnesses\" for the various counts \"could not be available at the same time\"). Although some of the government's evidence may have overlapped among the counts, the charges were not inseparable. To the contrary, the jury was specifically instructed that the \"verdict on one count should not control [the] verdict on any other count.\" Either of these alternatives would have allowed Carter to confront J.C. face-to-face, without screens, cables, and thousands of miles between them. We are mindful that having to make these adjustments on" } ]

[ { "docid": "23216564", "title": "", "text": "Gomery, 1925, 269 U.S. 177, 185, 46 S.Ct. 42, 70 L.Ed. 222. Impossible as precision is in such description, the requirement of creative discovery adding to scientific knowledge makes it clear why many alleged inventions are unquestionably outside of the area protected by the patent laws. This conception has been particularly helpful in the evaluation of those discoveries in the field of mechanics which have involved only combinations of old and familiar elements and ideas. When, if ever, can suoh combination be said to add to scientific knowledge? The reasonable and accepted answer is if, but only if, the particular combination yields some surprising or extraordinary result. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162. “The mere aggregation of a number of old parts or elements which, in the aggregation, perform or produce no new or different function or operation than that theretofore performed or produced by them, is not patentable invention.” Lincoln Engineering Co. v. Stewart-Warner Corp., 1938, 303 U.S. 545, 549, 58 S.Ct. 662, 664, 82 L.Ed. 1008. We think, even on patentee’s own analysis, the present is as plain a case as can be found of a combination of old mechanical devices and ideas producing no unusual result and adding nothing to scientific knowledge. In Ryan Distributing Corp. v. Caley, 3 Cir., 1945, 147 F.2d 138, 142, this court pointed out that entry of judgment n. o. v. is the appropriate corrective action when a jury has found a patent valid although the court’s application of defining principles reveals “a clear-cut case of lack of invention”. Also indicating the propriety of thus overruling the trier of fact is the already cited Atlantic and Pacific case where the Supreme Court reversed a finding of invention duly made and approved by both a district court and a court of appeals. In the instant case the district court should have entered judgment n. o. v. upon the basis of a ruling that, consistent with controlling standards, the device in suit plainly could not embody invention. This patent of" } ]

[ { "docid": "14548097", "title": "", "text": "It is completely answered by what was said by this court in. Ryan Distributing Corporation v. Caley, 1945, 147 F.2d 138, certiorari denied 325 U.S. 859, 65 S.Ct. 1199, 89 L.Ed. 1979, and Packwood v. Briggs & Stratton Corp., 1952, 195 F.2d 971, certiorari denied 344 U.S. 844, 73 S.Ct. 61, 97 L.Ed. 657; Id., 344 U.S. 882, 73 S.Ct. 174, 97 L.Ed. 683. What Judge Hastie said, speaking for the court in the Packwood case, may aptly he repeated, 195 F.2d at pages 973-974: “A jury in a patent case is not free to treat invention as a concept broad enough to include whatever discovery or novelty may impress the jurors favorably. Over the years the courts of the United States, and particularly the Supreme Court, have found meaning implicit in the scheme and purpose of the patent laws which aids in the construction of their general language. In this process, rules and standards have been developed for use as guides to the systematic and orderly definition and application of such a conception as invention in accordance with what the courts understand to be the true meaning of the Constitution and the patent laws. Once such standards and rules are authoritatively announced any finding of ‘invention’ whether by a court or a jury must be consistent with them. “This is no peculiarity of patent law. Jury findings of negligence or proximate cause must comport with common law rules devised to give reasonable and systematic meaning to those generalities. * * * And so it is throughout the body of the common law. This authority and responsibility to keep jury findings within reasoned rules and standards is an essential function of United States judges today as it long has been of common law judges. * * It stands as a great safeguard against gross mistake or caprice in fact finding. ****** “In Ryan Distributing Corp. v. Caley, 3 Cir., 1945, 147 F.2d 138, 142, this court pointed out that entry of judgment n. o. v. is the appropriate corrective action when a jury has found a patent valid although the" }, { "docid": "7960149", "title": "", "text": "MARSH, District Judge. Ivan N. Fraver instituted this action against The Studebaker Corporation for the alleged infringement of Patent No. 1,903,037, filed August 14, 1931, and issued on March 28, 1933. The plaintiff limited his proof of infringement to claims 1, 2 and 3 of-said patent. Invalidity and noninfringement were the principal defenses. Interrogatories were submitted to the jury in order to aid them in formulating a general verdict. The jury in answer to the interrogatories found that the three claims were valid and that claim 1 was infringed, but that claims 2 and 3 were not infringed. A general verdict in the sum of $79,250 was returned in favor of the plaintiff and judgment was entered on the verdict. A motion by the defendant at the trial for a directed verdict was refused and it subsequently filed a motion to set aside the verdict and to enter judgment in its favor. We are of the opinion that this motion should be granted. Cf. Packwood v. Briggs & Stratton Corp., 3 Cir., 1952, 195 F.2d 971; Ryan Distributing Corporation v. Caley, 3 Cir., 1945, 147 F.2d 138; Fischer & Porter Co. v. Brooks Rotameter Co., D.C.E.D.Pa.1952, 107 F.Supp. 1010. The device in suit is an improvement patent designed to ventilate, cool and heat the seats and passenger compartments of motor-driven cars such as automobiles, busses, motor-boats and aircraft. From the verdict it was apparently determined that the heating and certain other features embodied in claims 2 and 3 were not infringed by the accused structure. It is hardly open to question but that the patent is a combination of old elements, and, under the decisions, must be carefully scrutinized to determine whether it is a combination which produces a new and unusual result or is simply an aggregation: Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 71 S. Ct. 127, 95 L.Ed. 162. Claim 1 is as follows: “In combination with a motor-driven car having a cowl, an upholstered seat and supporting means for said seat forming therewith a chamber, said cowl being provided" }, { "docid": "14444206", "title": "", "text": "consist of a “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C.A. § 101. Not every new and useful improvement in an art is patentable. The improvement, to be patentable, requires the application of more ingenuity and skill than that of an ordinary mechanic acquainted with the business. Crosley Corp. v. Westinghouse Electric & Mfg. Co., 3 Cir., 1945, 152 F.2d 895; Cuno Engineering Corporation v. Automatic Devices Corp., 1941, 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58; Churchill Meat Co. v. Brodsky, D.C.N.J.1958, 160 F.Supp. 241, affirmed 3 Cir., 262 F.2d 77. In appraising the validity of a patent in the light of prior art patents, invalidity may be found if the asserted anticipatory patents are of an art analogous to that of the patent in suit. Whether art or uses are analogous depends upon the similarity of their elements and purposes. If the elements and purposes of one art are related and similar to those in another art, and, because and by reason of that relationship and similarity, make an appeal to the mind of a person having mechanical skill and knowledge of the purposes of the other art, the two arts are analogous. The patent in suit discloses a combination device consisting of an aggregation of old elements. Whether the device involves invention depends upon whether its elements were previously used in combination to effect the same functionol purposes. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162; Lincoln Engineering Co. of Illinois v. Stewart-Warner Corp., 1938, 303 U.S. 545, 58 S.Ct. 662, 82 L.Ed. 1008. The mere aggregation of a number of old parts or elements which, in the aggregation, perform or produce no new or different function or operation from that theretofore performed or produced by them, is not patentable invention. See Packwood v. Briggs & Stratton Corp., 3 Cir., 1952, 195 F.2d 971, certiorari denied 344 U.S. 844, 73 S.Ct. 61, 97 L.Ed. 657, rehearing denied 344 U.S. 882, 73 S. Ct." }, { "docid": "22593532", "title": "", "text": "a patent is a question of law.” However, they once more criticized the “two-court rule” laid down in Graver in the following language, 340 U.S. at page 156, 71 S.Ct. at page 132: “That rule, imported from other fields, never had a place in patent law. Having served its purpose in Graver Tank & Mfg. Co. v. Linde Air Products Co., it is now in substance rejected. The Court now recognizes what has long been apparent in our cases: that it is the ‘standard of invention’ that controls. That is present in every case where the validity of a patent is in issue. It is that question which the Court must decide. No ‘finding of fact’ can be a substitute for it in any case. The question of invention goes back to the constitutional standard in every case.” (Emphasis added.) It is not for us to say whether the Court in A. & P. rejected the rule laid down in Graver. Chief Judge Major did not seem to think it had done so in O’Brien v. O’Brien, 7 Cir., 1953, 202 F.2d 254, 255-256, where he reaffirmed our holding in Hazeltine. However, he did entertain some doubt as to the effect of the rule in Graver, following a reversal of this court in Trager v. Crest Specialty, 7 Cir., 1950, 184 F.2d 577, by the Supreme Court in a per curiam opinion 1951, 341 U.S. 912, 913, 71 S.Ct. 733, 95 L.Ed. 1349, citing only Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162. In Trager, our court, speaking through Judge Lindley, had affirmed a holding of validity and infringement largely upon the findings made by the district court, citing Graver and Hazeltine. It is apparent that a number of other circuits, following A. & P., have held that the question of validity is one of law, or that the ultimate question of invention is one of law, or that the application of the proper criteria or standards for patent-ability are questions of law. Typical of such recent opinions are" }, { "docid": "12012003", "title": "", "text": "out in the Sinclair case.” This case differs from Montmarquet v. Johnson and Johnson, D.C., 82 F.Supp. 469, affirmed 179 F.2d 240 (3rd Cir.), for here, while invalidity was found on a motion for summary judgment, the court had the benefit there of the affidavit of an expert by way of explanation of the patent. The rule is explicitly stated in Messing v. Quiltmaster Corp., D.C., 159 F.Supp. 181, “However, in order to determine patent validity upon this motion, ‘ * * * the court must be certain that it does not need any expert testimony or other extrinsic evidence to explain or evaluate the prior art, or to explain the application of complicated patent descriptions to the subject matter of the patent so that by a mere comparison of the patent in suit with the prior art patents the court can comprehend the similarities or differences in the patents, invalidity for lack of invention being so clearly apparent on the face of the patent that no testimony could change that conclusion.’ ”, quoting Glatt v. Sisco, supra, D. C., 136 F.Supp. 936, at page 937, citing Montmarquet v. Johnson and Johnson, supra, Baker v. Webb, D.C., 112 F.Supp. 394 and Chiplets, Inc. v. June Dairy Products Co., D.C., 89 F.Supp. 814. Additionally, no finding of fact can be a substitute for the standard “of invention which is the controlling factor.” Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 156, 71 S.Ct. 127, 95 L.Ed. 162. That standard of invention has been set forth with great clarity in the recent opinion of the Supreme Court in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545. Therein, the Court sets out the conditions of patentability under the 1952 Patent Act covering §§ 101, 102 and 103. “An analysis of the structure of these three sections indicates that patentability is dependent upon three explicit conditions: novelty and utility as articulated and defined in § 101 and § 102, and non-obviousness, the new statutory formulation, as set out in § 103.” Further, at" }, { "docid": "23171048", "title": "", "text": "of fourteen years before. The case was being tried to the court and the trial judge has considerable discretion as to what evidence shall be admitted. The Federal Rules and practice favor admission of evidence rather than -exclusion if the proffered evidence has -any probative value at all. We think the letter was admissible for what it appeared to be and that the question was ■one of weight rather than admissibility. We do not find that the trial judge attached undue weight to the letter. He did not find that it was determinative ■of the issue of validity of patent No. 1, nor do we. It was cumulative and after finding validity it added strength to the conclusion. The fact that others had not achieved a result or made a discovery is only a circumstance in determining invention. The claim that the trial judge based his finding of validity of patent No. 1 on commercial success is without foundation. We do not find anything in the opinion that would indicate he made such a finding, nor have counsel for the defendants referred any such findings to us. Only in close cases where there is some doubt about invention will commercial success tip the scales in favor of validity. If invention is lacking in a device no amount of commercial success will validate a patent. Jungersen v. Ostby & Barton Co., 335 U.S. 560, 567, 69 S.Ct. 269, 93 L.Ed. 235; Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U.S. 275, 279, 64 S.Ct. 593, 88 L.Ed. 721; Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 153, 71 S.Ct. 127, 95 L.Ed. 162. The trial judge did not find that invention was such a close question that it was necessary to rely on commercial success to sustain validity. The defendants charge that the trial judge refused to recognize the fundamental rule that a device does not infringe where it follows the prior art rather than the patent disclosures. It is obvious that there can be no infringement in this case unless the accused device, the" }, { "docid": "7960157", "title": "", "text": "changes, of elements long since disclosed in prior patents. When these elements in the aggregate perform or produce no new or different function or operation than that theretofore performed or produced by them and with no other result than the sum of the results produced by each of the combined dements the patent is invalid. A. & P. case, supra. Thus, when plaintiff’s combination patent is scrutinized under the strict construction, it continues to appear that no distinct contribution has been made in the art of car ventilating and that no new or unusual result or invention has been shown. Therefore, as a matter of law, the verdict based on that construction should be set aside. But assuming, as the jury found, that the patent as strictly construed by the court was valid, we believe it would still be necessary to enter judgment n. o. v. for the defendant for the reason that the evidence does not warrant a verdict of infringement. See Black Diamond Coal Mining Co. v. Excelsior Coal Co., 1895, 156 U.S. 611, 15 S.Ct. 482, 39 L.Ed. 553; Singer Mfg. Co. v. Cramer, 1904, 192 U.S. 265, 24 S.Ct. 291, 48 L.Ed. 437; Ryan Distributing Corp. v. Caley, 147 F.2d 138, supra; Western Electric Co. v. Robertson, 2 Cir., 1905, 142 F. 471; Hurin v. Electric Vacuum Cleaner Co., 6 Cir., 1924, 298 F. 76; McRoskey v. Braun Mattress Co., 9 Cir., 1939, 107 F.2d 143; Fischer & Porter Co. v. Brooks Rotameter Co., 107 F.Supp. 1010, supra. The principle to be gathered from these cases is that where the credibility of witnesses is not involved, the meaning of scientific terms is not in substantial dispute, and the evidence on infringement is not conflicting, except in the interpretive sense, the question of infringement, even though one of fact, is for the court and not for the jury. We think such a case is presented here. When the accused structure is examined in the light of the exhibits and evidence it cannot reasonably be asserted that even a slight amount of air escapes through the paddings and" }, { "docid": "4122775", "title": "", "text": "of infringement and particularly the doctrine of equivalents, stated quite explicitly: A finding of equivalence is a determination of fact. Proof can be made in any form: through testimony of experts or others versed in the technology; by documents, including texts and treatises; and, of course, by the disclosures of the prior art. Like any other issue of fact, final determination requires a balancing of credibility, persuasiveness and weight of evidence. Id. at 609-610, 70 S.Ct. at 857. Nor is the issue of validity devoid of factual questions, although the respondents cite Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950), for the principle that patent validity is a matter of law. That case is far from unambiguous on this point, but has been brightly illuminated by subsequent cases. In Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), the Supreme Court held two patents invalid under the nonobviousness standard of 35 U.S.C. § 103. The Court’s opinion included this elaboration on the nature of the validity issue: While the ultimate question of patent validity is one of law, [Great] A. & P. Tea Co. v. Supermarket [Equipment] Corp., supra, 340 U.S. at 155, [71 S.Ct. at 131], the § 103 condition, which is but one of three conditions, each of which must be satisfied, lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Id. at 17, 86 S.Ct. 684, at 694. Needless to say, nothing in our opinion is intended to intimate any judgment as to whether the issues of validity and infringement would have to be put to the jury in any given case. By the time a case actually comes to trial the facts may have become sufficiently clear" }, { "docid": "17229879", "title": "", "text": "include any discovery or novelty which may impress the jurors favorably. Packwood v. Briggs & Stratton Corp., 195 F.2d 971, 973 (3rd Cir.), cert. denied, 344 U.S. 844, 73 S.Ct. 61, 97 L.Ed. 657 (1952). Any finding of invention by a jury must be consistent with the standards developed by the courts. If the trial court’s application of defining principles reveals a clear cut case of lack of invention, it must enter judgment n. o. v. accordingly. Nachtman v. Jones & Laughlin Steel Corp., 235 F.2d 211, 212-213 (3rd Cir. 1956), cert. denied, 352 U.S. 971, 77 S.Ct. 363, 1 L.Ed.2d 324 (1957); Berkeley Pump Co. v. Jacuzzi Bros., Inc., 214 F.2d 785, 792 (9th Cir. 1954); Packwood v. Briggs & Stratton Corp., supra. In the present case the primary facts were not in substantial dispute; and, for purposes of review, “whether the thing patented amounts to a patentable invention” is a question of law. Mahn v. Harwood, 112 U.S. 354, 358, 6 S.Ct. 451, 28 L.Ed. 665 (1884); Great Atlantic & Pacific Tea Co. v. Supermarket Equip. Co., 340 U.S. 147, 154-156, 71 S.Ct. 127, 95 L.Ed. 162 (1950); Crest Specialty v. Trager, 341 U.S. 912, 71 S.Ct. 733, 95 L.Ed. 1349 (1951) (per curiam); Comment, Appellate Review of Determinations of Patentable Inventions, 29 U.Chi.L.Rev. 185, 189-190 (1961). Consequently, “conclusions, based upon the primary facts, upon which depends (sic) the L-timate findings of patentability, as well as the standard of invention applied below, are questions of law fully reviewablo in this court.” Tatko Bros. Slate Co. v. Hannon, 270 F.2d 571, 572 (2nd Cir.), cert. denied, 361 U.S. 915, 80 S.Ct. 260, 4 L.Ed.2d 185 (1959); Armour & Co. v. Wilson & Co., 274 F.2d 143, 151 (7th, Cir. 1960) (in banc). . See Great Atlantic & Pacific Tea Co. v. Supermarket Equip. Co., supra, 340 U.S. at p. 151, 71 S.Ct. 127, 95 L.Ed. 162; Amerock Corp. v. Aubrey Hardware Mfg., Inc., supra, 7 Cir., 275 F.2d at p. 348. . Tr. 131. . The District Court thought it “probable” that New York law applied to the claim" }, { "docid": "4122774", "title": "", "text": "the legal action and remove them from the domain of the jury. Because a suit in equity for injunctive relief also cannot succeed unless the patent’s validity and its infringement are proved, these two issues are common to the legal claim for damages and equitable claim for injunctive relief in each of the two cases involved in this mandamus petition. Thus, under Dairy Queen, supra, and Beacon Theatres, supra, it would appear that Tights is entitled to determination by a jury of any factual questions related to the validity and infringement issues. Respondents have another answer ready at this point. They assert that these two issues are issues of law so that there is no role to be played by a jury. Well established precedent is emphatically to the contrary. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950), involved alleged infringement of a patent for an electric welding process and fluxes to be used with it. The Supreme Court, considering only the issue of infringement and particularly the doctrine of equivalents, stated quite explicitly: A finding of equivalence is a determination of fact. Proof can be made in any form: through testimony of experts or others versed in the technology; by documents, including texts and treatises; and, of course, by the disclosures of the prior art. Like any other issue of fact, final determination requires a balancing of credibility, persuasiveness and weight of evidence. Id. at 609-610, 70 S.Ct. at 857. Nor is the issue of validity devoid of factual questions, although the respondents cite Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950), for the principle that patent validity is a matter of law. That case is far from unambiguous on this point, but has been brightly illuminated by subsequent cases. In Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), the Supreme Court held two patents invalid under the nonobviousness standard of 35 U.S.C. § 103. The Court’s opinion" }, { "docid": "16349026", "title": "", "text": "of legal concepts.” Harries v. Air King Prods. Co., 2d Cir. 1950, 183 F.2d 158, 162. But however that may be, when the issue of validity has been carefully and completely considered and determined adversely to the patentee, there is no more reason for permitting its relitigation than the relit-igation of a difficult or complex question that has been decided in any other field, particularly when one considers “the backlog of untried cases which clogs our federal courts. The latter are cases where the litigant asks only for his day in court, not a plurality of days * * Aghnides v. Holden, 7th Cir. 1955, 226 F.2d 949, 951 (Schnackenberg, J., concurring). It is also argued, in support of permissiveness toward relitigation by a pat-entee after his first effort to vindicate his patent in court has failed, that the Patent Act provides that “[a] patent shall be presumed valid” and that “[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting it.” 35 U.S.C. § 282. But this section merely confers a procedural advantage upon a patentee when the validity of his patent is challenged in litigation. It in no way suggests that, having lost the suit in which he enjoyed that advantage, he should be permitted to try again. If the issuance of a patent is to be given weight in deciding whether a patentee should be able to invoke repeated judicial determinations of validity, it must be because the grant is attended by such careful and expert scrutiny that applications for patents on spurious or doubtful inventions will almost never be granted. But the evidence is to the contrary. See Great Atlantic & Pacific Tea Co. v. Supermarket Corp., 1950, 340 U.S. 147, 154, 156-158, 71 S.Ct. 127, 95 L.Ed. 162 (Douglas, J., concurring); Packwood v. Briggs & Stratton Corp., 3d Cir. 1952, 195 F.2d 971, 974. The huge backlog of unprocessed applications and the desire to publish and maintain a record of all potentially useful discoveries seem to influence the patent office to be liberal in its grants. Wright," }, { "docid": "1116029", "title": "", "text": "a valid patent. Thereafter the trial judge instructed the jury to return a verdict for the defendant, stating that he was thus instructing the jury “as a matter of law.” Obviously, the directed verdict rested on the conclusion of the judge that, in light of all the evidence adduced, it was his judicial duty to direct such a verdict at the hands of the jury. Mechanical Combinations At the outset it should be pointed out that we are here dealing with a mechanical device which concededly involves only a combining of old elements all of which were well known in the prior pump art. Under the pleadings the most vital question to be answered is whether the Berkeley combination in suit constitutes patentable invention. In a recent decision, Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 71 S.Ct. 127, 130, 95 L.Ed. 162, hereafter referred to as A & P Tea, the Supreme Court considered and disposed of the problem of what sort of combinations the lower courts are free to regard as patentable inventions in the mechanical field. In this decision it established the criteria and standards which must now be ap plied in determining whether a combination patent is valid. In Kwikset Locks v. Hillgren, 9 Cir., 210 F.2d 483, 486, certi-orari denied, 347 U.S. 989, 74 S.Ct. 852 we commented on and applied the standard approved by the high court, and the rule we followed in Kwikset is applicable to the facts of the instant case. Therefore we have examined the record on appeal to determine whether or not it clearly establishes that the Berkeley device meets the' rigid standards of invention we must apply, in default of which it must be regarded as an example of mechanical skill in assembling old elements the previous functional operations of which are not changed by their arrangement and inclusion in the device. And see our comments in Jacuzzi Bros., Inc., v. Berkeley Pump Co., 9 Cir., 191 F.2d 632, 637 where we discuss functional operations of old elements which are placed in aggregation." }, { "docid": "14017317", "title": "", "text": "appropriately adapted solid beam affixed to the ground to stop the movement of automobiles. The only devices of special adaptation are concavities for drainage on the underside of the beam, tongues and grooves at the beam ends, and headless pins for attachment of the structure to the ground. Enough has already been said to show that this is an aggregation of old and familiar mechanical features which, used together in appellant’s curbing, perform only the several normal and familiar functions which they have long been known and employed to perform separately. Thus analyzed, the aggregation does not meet the established standard of patentable invention. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162; Mojonnier Bros. Co. v. Tolan Machinery Co., 3 Cir., 1956, 230 F.2d 850; Packwood v. Briggs & Stratton Corp., 3 Cir., 1952, 195 F.2d 971, certiorari denied 344 U.S. 844, 73 S.Ct. 61, 97 L.Ed. 657. It remains the law that the “mere aggregation of a number of old parts or elements which, in the aggregation, perform or produce no new or different function or operation than that theretofore performed or produced by them, is not patentable invention”. Lincoln Engineering Co. of Illinois v. Stewart-Warner Corp., 1938, 303 U.S. 545, 549, 58 S.Ct. 662, 664, 82 L.Ed. 1008. Compare the similar language in Rich ards v. Chase Elevator Co., 1895, 159 U.S. 477, 487, 16 S.Ct. 53, 40 L.Ed. 225. Finally, we have not ignored appellant’s reminder that a significant presumption of validity attends a patent issued, as this one was, only after the Patent Office Board of Appeals, in a contested proceeding, has considered the nature of the structure and decided that it is a patentable invention. Modern Products Supply Co. v. Drachenberg, 6 Cir., 1945, 152 F.2d 203, certiorari denied 1946, 327 U.S. 806, 66 S.Ct. 964, 90 L.Ed. 1030. But respect for such considered administrative decision does not justify abdication of the normal judicial function. It still remains the responsibility of the United States courts to see that patent monopoly is enjoyed only" }, { "docid": "14548096", "title": "", "text": "v. having been made by the defendant, the court granted it and entered judgment in favor of the defendant. The court also granted an alternative motion for a new trial on the question of damages, to take effect only if the judgment for the defendant should be reversed. D.C., 134 F.Supp. 392. The present appeal by the plaintiff followed. In the opinion granting judgment n. o. V. the district court stated: “All of the evidence taken in its most favorable light for the plaintiff, with all disputed facts, questions and inferences resolved in his favor, leaves plaintiff’s case wholly unproved.” 134 F.Supp. 392, 406. The court’s conclusion was that under all of the evidence there was no room for reasonable men to differ and that the verdict of the jury being in disregard of the evidence would be set aside. The plaintiff’s principal contention is that in so doing the district court invaded the province of the jury and denied him his constitutional right to a jury trial. There is no merit to this contention. It is completely answered by what was said by this court in. Ryan Distributing Corporation v. Caley, 1945, 147 F.2d 138, certiorari denied 325 U.S. 859, 65 S.Ct. 1199, 89 L.Ed. 1979, and Packwood v. Briggs & Stratton Corp., 1952, 195 F.2d 971, certiorari denied 344 U.S. 844, 73 S.Ct. 61, 97 L.Ed. 657; Id., 344 U.S. 882, 73 S.Ct. 174, 97 L.Ed. 683. What Judge Hastie said, speaking for the court in the Packwood case, may aptly he repeated, 195 F.2d at pages 973-974: “A jury in a patent case is not free to treat invention as a concept broad enough to include whatever discovery or novelty may impress the jurors favorably. Over the years the courts of the United States, and particularly the Supreme Court, have found meaning implicit in the scheme and purpose of the patent laws which aids in the construction of their general language. In this process, rules and standards have been developed for use as guides to the systematic and orderly definition and application of such a conception as" }, { "docid": "7960150", "title": "", "text": "971; Ryan Distributing Corporation v. Caley, 3 Cir., 1945, 147 F.2d 138; Fischer & Porter Co. v. Brooks Rotameter Co., D.C.E.D.Pa.1952, 107 F.Supp. 1010. The device in suit is an improvement patent designed to ventilate, cool and heat the seats and passenger compartments of motor-driven cars such as automobiles, busses, motor-boats and aircraft. From the verdict it was apparently determined that the heating and certain other features embodied in claims 2 and 3 were not infringed by the accused structure. It is hardly open to question but that the patent is a combination of old elements, and, under the decisions, must be carefully scrutinized to determine whether it is a combination which produces a new and unusual result or is simply an aggregation: Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 71 S. Ct. 127, 95 L.Ed. 162. Claim 1 is as follows: “In combination with a motor-driven car having a cowl, an upholstered seat and supporting means for said seat forming therewith a chamber, said cowl being provided with an air admission opening and a vane for directing air into said opening; an air conducting pipe having an air inlet end positioned to receive air entering through said opening, said pipe extending downwardly from said inlet end, rearwardly under the floor of the car and upwardly into said chamber.” Plaintiff contends that a broad construction should be given to the “chamber.” He argues that it was designed so that the incoming air would escape into the interior of the car from under the seat cushion as well as through the upholstery covering the seat cushion. He urges that the supporting means for said seat were not intended to be airtight. He contends that when his patent is thus interpreted the defendant’s accused structure, the “Climatizer,” is an equivalent and infringes. At the trial the court did not agree with plaintiff’s interpretation, but even if it were accepted, we feel required to conclude that the claim and every component thereof was substantially anticipated and obvious to one skilled in the art. The combination of" }, { "docid": "14548098", "title": "", "text": "invention in accordance with what the courts understand to be the true meaning of the Constitution and the patent laws. Once such standards and rules are authoritatively announced any finding of ‘invention’ whether by a court or a jury must be consistent with them. “This is no peculiarity of patent law. Jury findings of negligence or proximate cause must comport with common law rules devised to give reasonable and systematic meaning to those generalities. * * * And so it is throughout the body of the common law. This authority and responsibility to keep jury findings within reasoned rules and standards is an essential function of United States judges today as it long has been of common law judges. * * It stands as a great safeguard against gross mistake or caprice in fact finding. ****** “In Ryan Distributing Corp. v. Caley, 3 Cir., 1945, 147 F.2d 138, 142, this court pointed out that entry of judgment n. o. v. is the appropriate corrective action when a jury has found a patent valid although the court’s application of defining principles reveals ‘a clear-cut case of lack of invention’. Also indicating the propriety of thus overruling the trier of fact is the already cited Atlantic and Pacific case [Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162] where the Supreme Court reversed a finding of invention duly made and approved by both a district court and a court of appeals. In the instant case the district court should have entered judgment n. o. v. upon the basis of a ruling that, consistent with controlling standards, the device in suit plainly could not embody invention.” This brings us to the evidence on the question of the validity of the four patents in suit. In his full and careful opinion granting the defendant’s motion for judgment n. o. v. District Judge Will-son discussed in detail the evidence which he concluded established beyond doubt, in the light of the relevant rules of law, the invalidity of the plaintiff’s patents, which evidence the jury had" }, { "docid": "14548099", "title": "", "text": "court’s application of defining principles reveals ‘a clear-cut case of lack of invention’. Also indicating the propriety of thus overruling the trier of fact is the already cited Atlantic and Pacific case [Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162] where the Supreme Court reversed a finding of invention duly made and approved by both a district court and a court of appeals. In the instant case the district court should have entered judgment n. o. v. upon the basis of a ruling that, consistent with controlling standards, the device in suit plainly could not embody invention.” This brings us to the evidence on the question of the validity of the four patents in suit. In his full and careful opinion granting the defendant’s motion for judgment n. o. v. District Judge Will-son discussed in detail the evidence which he concluded established beyond doubt, in the light of the relevant rules of law, the invalidity of the plaintiff’s patents, which evidence the jury had disregarded in finding the patents valid. 134 F.Supp. 392, 395-406. Our own consideration of the evidence has satisfied us that the district court committed no error in setting aside the verdict in the plaintiff’s favor and entering judgment n. o. v. for the defendant. We find ourselves in accord with Judge Willson’s discussion of the evidence and, therefore, need not recount it in detail here. It is sufficient merely to say that we agree that the evidence clearly established that Reissue Patent 20,788 was fully anticipated by the prior art and in any event involved a mere aggregation of old steps which was not patentable, Mojonnier Bros. Co. v. Tolan Machinery Co., 3 Cir., 1956, 230 F.2d 850, and that Patents 2,240,265, 2,-459,674 and 2,576,074 likewise involved unpatentable aggregations of old steps. The plaintiff’s contention that the trial judge erred in directing a verdict for the defendant on the cause of action for wrongful misappropriation of ideas was not strongly pressed. Indeed in the district court he abandoned any claim for separate damages with respect" }, { "docid": "15304079", "title": "", "text": "KIRKPATRICK, Chief Judge. This is an action at law for damages for infringement of U. S. Patent 2,441,350 to Fischer, for a metering tube for use in a rotameter (Claim 1) and for the rotameter itself (Claims 2 and 3). The case was tried to the Court and a jury. It was stipulated ■by counsel that the verdict was to be taken on three issues only, namely, “whether the patent involves invention, whether Mr. Fischer was the first and original inventor, and damages in the event of a verdict for the plaintiff”, all other issues of fact and law to be determined by the Court without a jury. The jury found a verdict for the plaintiff and awarded damages in the amount of $14,177.36. The defendant now moves to set aside the verdict and for judgment under Rule 50(b), Fed.Rules Civ.Proc. 28 U.S. C. and upon the entire record including the issues reserved for the Court. It may .be taken as the law, until the Supreme Court rules otherwise, that the question of invention is one of fact. Ryan Distributing Corp. v. Caley, 3 Cir., 147 F.2d 138. In that case and in the very recent one of Packwood v. Briggs & Stratton Corp., 3 Cir., 195 F.2d 971, the Court of Appeals for the Third Circuit had occasion to consider the power of the Court to direct or set aside verdicts in patent cases. In the Ryan Distributing case, the Court stated [147 F.2d 140], as the rule for civil cases, that “a verdict will normally be directed where both the facts and the inferences to be drawn therefrom, as supported by the overwhelming weight of the evidence, point so strongly in favor of one party or the other that the court feels reasonable men could not possibly come to a contrary conclusion”, and went on to say that in a patent case perhaps the judge’s power goes further than this minimum, but found it unnecessary to say how much further. In the Pack-wood case [195 F.2d 973], the Court defined the judge’s power in this respect, saying that" }, { "docid": "15976324", "title": "", "text": "TRASK, Circuit Judge: This appeal stems from a dispute over appellant Carson Manufacturing Co.’s manufacture and distribution of a highway marker which is very similar to a patented marker manufactured and distributed by appellee Carsonite International Corp. Appellant argues that the court below erred in awarding damage and injunctive relief for patent infringement, trademark infringement, and unfair competition based on a jury verdict of appellant’s liability. We reverse. I Both parties identify Schmanski Patent 4,092,081 Claim 1, with dependent Claims 12, 13, 17, and 18; and Claim 20, with dependent Claims 24 and 25; as the claims relevant to the patent infringement issues. On this appeal, appellant contends that none of these claims is entitled to a presumption of validity because some prior art references were not cited to the patent examiner in the initial application. It also asserts that the patent is invalid and, in any event, not infringed. Appellee claims that it adequately disclosed the prior art, and that the jury verdict of infringement is supported by substantial evidence. A Although the ultimate question of patent validity is a legal one, Graham v. John Deere, 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545 (1966) (quoting A & P Tea Co. v. Supermarket Corp., 340 U.S. 147, 155, 71 S.Ct. 127, 131, 95 L.Ed. 162 (1950)), appellant raises two issues which are relevant to the degree of scrutiny that we should give to the judgment below: whether the Schmanski patent is entitled to a presumption of validity, and whether the patent is a so-called “combination patent.” 1 Under 35 U.S.C. § 282, a patent is presumed valid, and the burden of showing invalidity rests with the party challenging the patent. This presumption of validity can be rebutted only by clear and convincing evidence. Saf-Guard Prods., Inc. v. Service Pts., Inc., 532 F.2d 1266, 1271 (9th Cir. 1976), cert. denied, 429 U.S. 896, 97 S.Ct. 258, 50 L.Ed.2d 179; see St. Regis Paper Co. v. Bemis Co., 549 F.2d 833, 838 (7th Cir.), cert. denied, 434 U.S. 833, 98 S.Ct. 119, 54 L.Ed.2d 94 (1977). However, where" }, { "docid": "11924392", "title": "", "text": "be applied in determining the validity of a patent within the scope of appellate review. After an extensive survey of case law the court concluded that: “ * * * the rules governing the trial of patent cases are no different than in other types of civil litigation, and further, that the scope of. our review on appeal follows the same pattern. We look at the findings of fact as to invention in the way that such factual determinations are generally reviewed. We examine the standard of invention applied to these facts as a question of law, as we have done in other areas. If anything we have said in prior opinions strays too far from this conclusion, such holdings are now modified to conform to the views expressed herein.” “The standard of patentability is a constitutional standard; and the question of validity of a patent is a question of law.” Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 155, 71 S.Ct. 127, 95 L.Ed. 162. “Whether the thing patented amounts to a patentable invention” is “a question of law,” Mahn v. Harwood, 1884, 112 U. S. 354, 358-359, 5 S.Ct. 174, 6 S.Ct. 451, 28 L.Ed. 665; Lincoln Engineering Co., etc., v. Stewart-Warner Corp., 1938, 303 U.S. 545, 58 S.Ct. 662, 82 L.Ed. 1008, but the case may turn on a question of fact. This court in the recent case of National Sponge Cushion Co. v. Rubber Corp. of Cal., 1961, 9 Cir., 286 F.2d 731, reversed a judgment notwithstanding the verdict saying: “In this case, as in many other cases where a claimed invention is attacked on the ground that the claims of patented devices were anticipated by earlier patents, the decision as to validity may turn upon a question of fact.” See Judge Pope’s discussion in his concurring opinion in Bergman v. Aluminum Lock Shingle Corp., 9 Cir., 1958, 251 F.2d 801, 809. Oriental Foods, Inc. v. Chun King Sales, 9 Cir., 1957, 244 F.2d 909, 913; Kwikset Locks, Inc. v. Hillgren, 9 Cir., 1954, 210 F.2d 483; Packwood v. Briggs" } ]

[ { "docid": "17778027", "title": "", "text": "holding nondis-chargeable claims — • who may thus pursue post-bankruptcy collection efforts against the debtor— to be preferred not only after the bankruptcy case is completed but also during the time payments are being made to creditors. In re Smalberger, 157 B.R. 472, 475-76 (Bankr.D.Or.1993), aff'd 170 B.R. 707 (D.Or. 1994). Thus, the nondischargeable nature of student loan debts, absent more, is an insufficient basis for treating student loans preferentially, and a Chapter 13 plan cannot be approved that treats unpaid student loans more favorably than other unsecured debts merely because they are student loans. Cf. Brown, 162 B.R. at 517-18 (stating that if a plan favoring student loan creditors is to survive scrutiny under the statutory “discriminates unfairly” test, the debtor must place something material onto the scales to show a correlative benefit to other unsecured creditors). Perhaps because of this prohibition, the debtors in this case have not classified their student loan debts based on nondischarge-ability. Rather, the debtors have designated these obligations as long-term indebtedness pursuant to § 1322(b)(5). That section provides, in pertinent part, that a plan may provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due. 11 U.S.C. § 1322(b)(5). The debtors contend that by expressly allowing a debtor to pay long-term creditors according to the terms of their contracts, § 1322(b)(5) essentially sanctions disparate treatment of these claims. The debtors argue, therefore, that the § 1322(b)(1) prohibition against unfair discrimination does- not apply in the context of § 1322(b)(5) obligations. This Court has not previously addressed whether Chapter 13 debtors may satisfy the § 1322(b)(1) requirement of “fair discrimination” by separately classifying student loan debt as long-term indebtedness under § 1322(b)(5). The most recent case addressing the application of § 1322(b)(1) to subsection (b)(5) classifications is In re Chandler, 210 B.R. 898 (Bankr.D.N.H.1997). In that case, the debtors proposed to pay student loan creditors their monthly" } ]

[ { "docid": "12193350", "title": "", "text": "any class ; and second, the provision that permits cure and maintain treatment of secured and unsecured long-term debt. It is clear that the Debtor may employ cure and maintain treatment under Section 1322(b)(5) for the her student loan debt given the occurrence of prepetition defaults and original loan maturity dates after the final Plan payment date. See 8 Collier on Bankruptcy ¶ 1322.09[2] (15th ed. rev.). See also In re Sautter, 133 B.R. 148 (Bankr.W.D.Mo.1991). Nonetheless, the treatment of student loan debt under Section 1322(b)(5) must not discriminate unfairly as against the Debtor’s other unsecured debt. See In re Chandler, 210 B.R. 898, 901 (Bankr.D.N.H.1997); In re Coonce, 213 B.R. 344, 347 (Bankr.S.D.Ill. 1997). In determining whether any such discrimination is fair or not, courts consider various factors, applied to the circumstances of each particular case. These factors are variously formulated but bear upon the equitable allocation of plan resources and the furtherance of underlying policy objectives. See In re Thibodeau, 248 B.R. 699 (Bankr.D.Mass.2000); In re Bentley, 266 B.R. 229 (1st Cir.BAP2001). Four considerations inform my decision in this matter. First, Congress, by its exception of student loan obligations, from discharge, has long made clear the legislative objective of student loan repayment. The Plan treatment of the Debtor’s student loan debt furthers the goal by routing Plan resources toward such repayment in accordance with the stated Code provisions. Second, for debts whose terms extend beyond the period of a chapter 13 plan— often including, precisely because of their nondischargeability, student loan obligations — Congress has further expressly permitted a debtor to elect to cure and maintain that debt. Here, the Debtor has elected this option, which channels only so much money to the student loan creditors as is necessary to cure the prepetition arrearage and ensure that she will not emerge from bankruptcy in arrears on these obligations. If she were to forego this option and pay an equal percentage to both student loan creditors and other nonpriority unsecured creditors, she would emerge from bankruptcy more deeply in arrears than she went into bankruptcy, a result that cannot" }, { "docid": "19283775", "title": "", "text": "holds that placing unsecured creditors, like those holding student loans, into a separate class and permitting debtors to maintain their payments to them at the full contract rate, as expressly permitted by section 1322(b)(5), is not “unfair” discrimination. This must be the result intended by Congress; otherwise, how could a debtor’s plan provide for the “maintenance of payments” on “unsecured” claims under section 1322(b)(5) if it were considered “unfair discrimination” under section 1322(b)(1). In order to give meaning to both subsections, the Court finds that the discrimination proposed by the debtors in this ease is not unfair. Thus, pursuant to the plain language of section 1322(b)(5), the Bankruptcy Code clearly allows the treatment proposed by the debtors in this case. See United States v. Ron Pair, 489 U.S. 235, 240-241, 109 S.Ct. 1026, 1029-1030, 103 L.Ed.2d 290 (1989) (holding that if the statute is “coherent and consistent, there is no need for a court to inquire beyond the plain language of the statute”). The last payment on the debtors’ student loans is due in February 2002. The last payment under their Chapter 13 plan is due September 1998. Accordingly, the last payment on the debtors’ student loans is due after the date on which the final payment under the plan is due. Other courts interpreting this statutory section have also held that debtors may use section 1322(b)(5) to justify different treatment of student loan debt under a Chapter 13 plan in order to cure arrearages and maintain payments on their student loan debts during the term of the plan. See, e.g., In re Cox, 186 B.R. 744 (Bankr.N.D.Fla.1995); In re Anderson, 173 B.R. 226, 229 (Bankr.D.Col.1993); In re Benner, 156 B.R. 631 (Bankr.D.Minn.1993); In re Saulter, 133 B.R. 148, 150 (Bankr.W.D.Mo.1991); In re McKinney, 118 B.R. 968 (S.D.Ohio 1990). Clearly, section 1322(b)(5) evidences an intent by Congress to allow for different treatment of long-term debt. Although section 1322(b)(5) is not limited on its face to situations involving nondischargeable, long-term unsecured debt, the Court notes that in reality only in cases involving student loans and marital debt will section 1322(b)(5) be" }, { "docid": "100551", "title": "", "text": "that the separate classification of the HEAL loan arrearage does not constitute “unfair discrimination” within the meaning of 11 U.S.C. § 1322(b)(1) because the separate classification and proposed treatment of the HEAL loan is permitted by 11 U.S.C. § 1322(b)(5). She maintains that because the Bankruptcy Code specifically provides for the curing of unsecured obligations that mature beyond the life of the plan, Congress intended to give debtors the flexibility to separately classify long term debt without violating the ban on unfair discrimination. The Debtor further contends that the Trustee’s argument for pro rata treatment of the HEAL loan arrearage is contrary to the concept of curing a default within the context of 11 U.S.C. § 1322(b)(3) and (b)(5). She argues that pursuant to § 1322(b)(5) providing anything less than payment in full of the arrears would render the “curing,” as used in the statute, meaningless and would be contrary to the principle set forth in U.S. v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir.1985), in which the court emphasized the principle of statutory construction that “all words and provisions of statutes are intended to have meaning and are to be given effect, and no construction should be adopted which would render statutory words or phrases meaningless, redundant or superfluous.” IV. DISCUSSION A. Applicable Law As the Trustee has raised the issue of whether the Debtor’s plan unfairly discriminates, the Debtor has the burden of persuading this Court that the classification and treatment of the HEAL loan arrearage does not discriminate unfairly and that her plan meets the requirements of § 1325 and is confirmable. In re Regine, 234 B.R. 4, 6 (Bankr.D.R.I.1999); In re Colfer, 159 B.R. 602, 608 (Bankr.D.Maine 1993). Section 1322 sets forth mandatory and discretionary provisions for Chapter 13 plans. It is well recognized that the nondischargeability of student loan debt is not a sufficient ground to permit separate classification and more favorable treatment of such debt. In re Sullivan, 195 B.R. 649, 654 (Bankr.W.D.Tex.1996); In re Colfer, 159 B.R. at 603. See also In re Chandler, 210 B.R. 898, 901 (Bankr.D.N.H.1997); In re Sautter," }, { "docid": "4546488", "title": "", "text": "— must be read collectively.” The court reasoned that § 1322(b)(5), by its use of the language “notwithstanding paragraph (2)” and by omitting any refer ence to paragraph (5), meant that § 1322(b)(5) was not trumped and that the sections must be read together. Similarly, Judge Yacos in In re Chandler, 210 B.R. 898, 903-04, (Bankr.D.N.H. 1997) stated the following: ... the Court finds that section 1322(b)(5) must be applied consistently with section 1322(b)(1), which requires that a plan “not discriminate unfairly against any class so designated” as an unsecured creditor class. If Congress had wanted courts not to consider whether putting unsecured creditors in a separate class and providing for full monthly payments on the unsecured creditors’ claims during the course of the plan constituted unfair discrimination, Congress would have drafted section 1322(b)(5) to read “notwithstanding paragraphs (1) and (2) of this subsection, [a plan may] provide for the curing of any default ... and maintenance of payments .... ” Congress did not draft the statute in such a manner. See also In re Thibodeau, 248 B.R. 699 (Bankr.D.Mass.2000) and In re Caruso, 2001 WL 34076052 (Bankr.C.D.Ill.) (“notwithstanding § 1322(b)(5), a debtor’s plan must still clear the § 1322(b)(1) hurdle of unfair discrimination”). There is, however, a respectable body of legal precedent for the minority view on this issue, including In re Truss, 404 B.R. 329 (Bankr.E.D.Wis.2009), In re Hanson, 310 B.R. 131 (Bankr.W.D.Wis.2004), In re Cox, 186 B.R. 744 (Bankr.N.D.Fla.1995), and In re Benner, 156 B.R. 631 (Bankr. D.Minn.1993). Two of these decisions were decided by this court’s colleagues; Truss by Judge McGarity and Hanson by Judge Martin. In Truss, Judge McGarity declared that § 1322(b)(5) provides a “bright line rule.” and held that a court need not resort to general considerations of whether or not the result constitutes unfair discrimination. She reached this result based upon the language in § 1322(b)(5), and stated that § 1322(b)(5), unlike § 1322(b)(1), does not contain any language dealing with unfair discrimination. Judge McGarity joined with Judge Martin, who in Hanson, stated that: “[wjhere there are two provisions in a statute," }, { "docid": "1181050", "title": "", "text": "when it made student loans generally non-dischargeable in a Chapter 13 plan. 11 U.S.C. Section 1328(a)(2) and Section 523(a)(8). This Court will not address the factors of whether the plan was filed in bad faith or whether the discrimination in the plan is proportional to the basis of the discrimination. It is sufficient that the Court finds the discriminatory treatment unreasonable and that debtor can carry out a plan without unfairly discriminating. Other bankruptcy courts addressing the question of whether Section 1322(b)(1) allows discrimination in favor of student loan creditors at the expense of other unsecured creditors have reached the same conclusion. See, e.g., In re Scheiber, 129 B.R. 604, 606-07 (Bankr.D.Minn.1991) (public policy reasons allowing discriminatory treatment in cases of child support payments not present in student loan cases); Matter of Tucker, 130 B.R. 71, 73-74 (Bankr.S.D.Iowa 1991) (no reasonable basis for discriminatory treatment where debtor proposed to pay 100% to student loans and 13% to other unsecured creditors); Matter of Cronk, 131 B.R. 710 (Bankr.S.D.Iowa 1990) (non-dischargeability of student loan not sufficient reason for discriminatory treatment where plan proposed to pay 40% to student loans and 8% to general unsecured creditors). Prior to the Code amendments in 1990 that made student loans generally non-dischargeable in Chapter 13, some courts addressing the question required debtors to treat their student loan indebtedness as long term debt under Section 1322(b)(5) in order to have their Chapter 13 plans confirmed. In re McKinney, 118 B.R. 968 (S.D.Ohio 1990); In re Newberry 84 B.R. 681 (Bankr.E.D.Cal.1988); In re Geehan, 59 B.R. 600 (Bankr.S.D.Ohio 1986); but see In re Winthurst, 97 B.R. 457 (Bankr.C.D.Ill.1989). Such treatment would require the debtor to cure any arrearage in the student loan indebtedness within a reasonable time and maintain regular payments during the pendency of the plan. 11 U.S.C. Section 1322(b)(1). Since the 1990 amendments, the rationale for such treatment is even stronger. Although the most common circumstance where Section 1322(b)(5) comes into play is to cure defaults on residential mortgages, the use of Section 1322(b)(5) is not limited to secured claims or residential mortgages. 5 Collier on" }, { "docid": "15734695", "title": "", "text": "how small the distribution. This fact gives a debtor a strong incentive to pay off as much as possible of these nondischargeable debts through the plan while paying as little as possible of those debts that will disappear after plan completion. See In re Coonce, 213 B.R. 344, 346 (Bankr.S.D.Ill.1997). However, § 1322(b)(1) prohibits a plan in which a debtor devotes a significantly larger amount of his disposable income toward the payment of nondischargeable debts simply because they are nondischargeable. See Groves, 39 F.3d at 215. In order to discriminate in favor of nondischargeable debts such as student loans, a debtor must find some “fair” basis either in the Code or congressional policy. Enterprising debtors’ attorneys quickly seized upon 11 U.S.C. § 1322(b)(5) as the optimal Trojan horse in which to sneak discriminatory treatment of nondischargeable debt through confirmation. Some debtors bolster the § 1322(b)(5) argument by asserting a policy-driven judicial priority exists for nondischargeable student loan debt. Bankruptcy courts have reacted differently to these tactics. B. The minority view: Plan provisions for payment of student loans which qualify for § 1322(b)(5) treatment are exempt from § 1322(b)(1) “unfair discrimination” scrutiny. Section 1322(b)(5) provides, in relevant part, (b) Subject to subsections (a) and (c) of this section, the plan may— (5) ... [PJrovide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due ... 11 U.S.C. § 1322(b)(5) (2000). Debtors traditionally use this subsection to decelerate, cure and maintain payments on defaulted mortgages. See Coonce, 213 B.R. at 345, n. 2. A minority of courts have found that § 1322(b)(5) provides a debtor with a per se acceptable method to discriminate between long-term nondischargeable unsecured debt and other unsecured debt in a Chapter 13 plan. See e.g. In re Cox, 186 B.R. 744, 746 (Bankr.N.D.Fla.1995); See also In re Benner, 156 B.R. 631, 634 (Bankr.D.Minn.1993). According to these courts, a debtor may not accelerate" }, { "docid": "15830920", "title": "", "text": "debtor may, in a Chapter 13 plan, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due. 11 U.S.C. § 1322(b)(5). This “cure and maintain” treatment of long-term student loans has been considered by several courts. The majority position holds that plans providing full payment of student loan obligations under § 1322(b)(5) must also undergo unfair discrimination analysis because nondischarge-ability, by itself, is insufficient reason to permit discrimination against other unsecured claims. In re Webb, 370 B.R. 418, 423 (Bankr.N.D.Ga.2007) (applying the four-part Leser test). The court in Webb concludes that “a balance must be found between the interest of the creditors in receiving equal treatment and the debtor’s interest in receiving a fresh start.” 370 B.R. at 425 (allowing the plan to be confirmed and limiting the conclusion to the specific facts of the case); see also In re Machado, 378 B.R. 14, 17 (Bankr.D.Mass.2007) (concluding that “in the circumstances of this case, the proposed discrimination as against non-student loan claims is fair”). Debtor classifies her student loan debt separately from other unsecured debt. It is excepted from discharge under § 523(a)(8). Debtor also points out that a significant amount of interest will accrue at 8.125% during the life of the plan if she is not able to continuing paying on it at a higher rate than other unsecured claims. The Court notes that Debtor’s plan to pay $250 per month on the student loan is insufficient to cover monthly interest accruing at approximately $335 per month. Under Trustee’s calculations, if the student loan is paid with other unsecured creditors, all unsecured creditors would receive approximately 20% of their claims. In comparison, under Debtor’s current plan, the DOE would receive 26.30% of its claim and other unsecured creditors would receive only 5%. The Court concludes that Debtor can carry out a plan without separately classifying the student loan debt. Separate classification would" }, { "docid": "100554", "title": "", "text": "Chapter 13 plan with no student loan arrearage. Id. In contrast to the court in Sautter, other courts attempt to analyze subsections 1322(b)(1) and (b)(5) together to give full meaning to the statute. The court in Chandler observed that § 1322(b)(1) must be applied consistently with § 1322(b)(5), reasoning that: [if] Congress had wanted courts not to consider whether putting unsecured creditors in a separate class and providing for full monthly payments on the unsecured creditors’ claims during the course of the plan constituted unfair dis crimination, Congress would have drafted section 1322(b)(5) to read “notwithstanding paragraphs (1) and (2) of this subsection, [a plan may] provide for the curing of any default ... and maintenance of payments.... ” Congress did not draft the statute in such a manner. 210 B.R. at 903. The court in Coonce, similarly declined to confirm the Chapter 13 debtors’ plan where the student loans were, separately classified on the basis of § 1322(b)(5), holding that the “fairness” determination is applicable to long term debt under the section, and the debtors’ classification was unfairly discriminatory. In re Coonce, 213 B.R. 344 (Bankr.S.D.Ill.1997). Citing Chandler, the Coonce court found that reading § 1322(b)(5) to mean that every classification under the section is “fair discrimination,” as the Debtor in this case asserts, is not correct. Id. at 347. The court stated “this reading of § 1322(b)(5) presumes too much and is inconsistent with the statute’s language and intended purpose.” Id. Stating a “mixed motive” existed for classifying student loan debts as long term obligations, with the real reason being the reduction of the nondis-chargeable debt burden following bankruptcy, the Court refused to permit “such an end run around § 1322(b)(1) and specifically [found] that § 1322(b)(1) prohibits unfair discrimination even when it appears in the guise of treatment of long term debt under § 1322(b)(5).” Id. at 348 This Court agrees with the courts in Chandler, Sullivan and Coonce. Subsections 1322(b)(1) and (b)(5) should both be given effect. Thus, the Court must determine whether the proposed discrimination in favor of the HEAL creditor is fair. The Eighth" }, { "docid": "15734699", "title": "", "text": "pass § 1322(b)(1) “unfair discrimination” scrutiny. The majority of courts reject the Benner approach and give effect to both § 1322(b)(1) and § 1322(b)(5) by subjecting a plan that provides for “cure and maintain” treatment of long-term student loans to “unfair discrimination” scrutiny. See, e.g. In re Thibodeau, 248 B.R. 699, 703 (Bankr.D.Mass.2000); See also Coonce, 213 B.R. at 346. The language of the statute supports this conclusion. As one court put it, [If]Congress had wanted courts not to consider whether putting unsecured creditors in a separate class and providing for full monthly payments on the unsecured creditors’ claims during the course of the plan constituted unfair discrimination, Congress would have draft ed section 1322(b)(5) to read “notwithstanding paragraphs (1) and (2) of this subsection ...” Congress did not draft the statute in such a manner. Chandler, 210 B.R. at 903. Additionally, the rules of construction purportedly lead to this conclusion. Congress explicitly exempted only co-signed consumer loans from “unfair discrimination” scrutiny in § 1322(b)(1) itself. The doctrine of inclusio unius exclusio alterious mandates the conclusion that Congress knew how to except long-term student loan debts from § 1322(b)(1) but chose not to. See Coonce, 213 B.R. at 348. “Any classification of unsecured claims must pass a test of fairness unless that classification involves consumer debts for which co-signers were obtained.” In re Williams, 253 B.R. 220, 225 (Bankr. W.D.Tenn.2000). The majority courts also reject the minority’s judicial priority and “fresh start” policy arguments. The majority courts find fault with some minority courts’ conclusion that Congress, by providing for the exception from discharge of student loans, intended to empower the judiciary to fashion a permissive priority for student loans. See Coonce, 213 B.R. at 348. The Congressional policies behind § 1328(a)(2) and the “fresh start” policy behind the Code itself are patently insufficient to justify the creation of such priorities in the student loan context. See Chandler, 210 B.R. at 902. The majority courts therefore reject the analogy between prioritized family support obligations and student loan obligations. See Coonce, 213 B.R. at 346, n. 5. One minority court phrased the" }, { "docid": "15734698", "title": "", "text": "support because Congress intended to elevate families above other unsecured creditors by enacting § 523(a)(5). Some courts following the Cox and Ben-ner line extend Leser to student loans by reasoning that Congress must have similarly intended that debtors be allowed to discriminate in favor of student loan creditors. See Benner, 156 B.R. at 634. These courts then find that this priority alone, or in combination with § 1322(b)(5), provides debtors with a per se fair method of discrimination in favor of long-term student loan debtors. See id. Second, other minority courts assert that a § 1322(b)(5) end-run around § 1322(b)(1) must be allowed for nondis-chargeable debts in order to fully effectuate the “fresh start” policy. See Cox, 186 B.R. at 745. Finally, some courts fret that § 1322(b)(5) would be compromised and Congressional intent thwarted if the section only exempted one form of unsecured debt, family support obligations, from § 1322(b)(1) scrutiny. See Cox, 186 B.R. at 746. C. The majority view: Plan provisions for long-term debts which qualify for § 1322(b)(5) treatment must also pass § 1322(b)(1) “unfair discrimination” scrutiny. The majority of courts reject the Benner approach and give effect to both § 1322(b)(1) and § 1322(b)(5) by subjecting a plan that provides for “cure and maintain” treatment of long-term student loans to “unfair discrimination” scrutiny. See, e.g. In re Thibodeau, 248 B.R. 699, 703 (Bankr.D.Mass.2000); See also Coonce, 213 B.R. at 346. The language of the statute supports this conclusion. As one court put it, [If]Congress had wanted courts not to consider whether putting unsecured creditors in a separate class and providing for full monthly payments on the unsecured creditors’ claims during the course of the plan constituted unfair discrimination, Congress would have draft ed section 1322(b)(5) to read “notwithstanding paragraphs (1) and (2) of this subsection ...” Congress did not draft the statute in such a manner. Chandler, 210 B.R. at 903. Additionally, the rules of construction purportedly lead to this conclusion. Congress explicitly exempted only co-signed consumer loans from “unfair discrimination” scrutiny in § 1322(b)(1) itself. The doctrine of inclusio unius exclusio alterious mandates the" }, { "docid": "12193349", "title": "", "text": "not “outside the plan”), thus subjecting those payments to her statutory percentage fee. The Debtor responds that long-term debt may be treated differently than short-term debt in a plan; that maximizing debt reduction is a legitimate bankruptcy goal, reinforcing her fresh start; that, absent the different treatment of unsecured debt, she would face many years of interest accruals and default on her student loan debt, undermining that fresh start; that she is dedicating to the Plan five years’ disposable income not three years’ as she might otherwise do, reflecting her good faith in proposing the Plan; that the Plan increases the prospect of full payment of her non-dischargeable student loan debt, thereby furthering an identified legislative goal; and that direct payments to eredi-tors are permitted under a plan and, if permitted, are properly excluded from trustee’s percentage fee compensation. Unfair Discrimination The resolution of the discrimination dispute implicates two provisions of the Bankruptcy Code: first, the provision that permits separate classification and treatment of unsecured claims so long as there is no unfair discrimination against any class ; and second, the provision that permits cure and maintain treatment of secured and unsecured long-term debt. It is clear that the Debtor may employ cure and maintain treatment under Section 1322(b)(5) for the her student loan debt given the occurrence of prepetition defaults and original loan maturity dates after the final Plan payment date. See 8 Collier on Bankruptcy ¶ 1322.09[2] (15th ed. rev.). See also In re Sautter, 133 B.R. 148 (Bankr.W.D.Mo.1991). Nonetheless, the treatment of student loan debt under Section 1322(b)(5) must not discriminate unfairly as against the Debtor’s other unsecured debt. See In re Chandler, 210 B.R. 898, 901 (Bankr.D.N.H.1997); In re Coonce, 213 B.R. 344, 347 (Bankr.S.D.Ill. 1997). In determining whether any such discrimination is fair or not, courts consider various factors, applied to the circumstances of each particular case. These factors are variously formulated but bear upon the equitable allocation of plan resources and the furtherance of underlying policy objectives. See In re Thibodeau, 248 B.R. 699 (Bankr.D.Mass.2000); In re Bentley, 266 B.R. 229 (1st Cir.BAP2001). Four" }, { "docid": "100553", "title": "", "text": "133 B.R. 148, 149 (Bankr.W.D.Mo.1991). In Sautter, however, the court, while finding that separate classification based upon nondischargeability constituted unfair discrimination, suggested that treatment of the loan as a long term debt under § 1322(b)(5) would be acceptable. The court determined that “permitting debtors to maintain their payments to [unsecured creditors] at the full contract rate, as expressly permitted by § 1322(b)(5) is not ‘unfair’ discrimination” and pursuant to that section “debtors may cure any defaults that exist and may maintain contractual payments as required for long-term unsecured debt” during the term of the plan. 133 B.R. at 150. The court observed the following: Debtor need only formulate a plan which treats her student loans as long term indebtedness under section 1322(b)(5). Even though such treatment may require treating student loans differently than other unsecured debt, it cannot be said that it would unfairly discriminate because the treatment would be in full accordance with code provisions. It is also consistent with the “fresh start” philosophy of the Code to insure that debtor emerges from her Chapter 13 plan with no student loan arrearage. Id. In contrast to the court in Sautter, other courts attempt to analyze subsections 1322(b)(1) and (b)(5) together to give full meaning to the statute. The court in Chandler observed that § 1322(b)(1) must be applied consistently with § 1322(b)(5), reasoning that: [if] Congress had wanted courts not to consider whether putting unsecured creditors in a separate class and providing for full monthly payments on the unsecured creditors’ claims during the course of the plan constituted unfair dis crimination, Congress would have drafted section 1322(b)(5) to read “notwithstanding paragraphs (1) and (2) of this subsection, [a plan may] provide for the curing of any default ... and maintenance of payments.... ” Congress did not draft the statute in such a manner. 210 B.R. at 903. The court in Coonce, similarly declined to confirm the Chapter 13 debtors’ plan where the student loans were, separately classified on the basis of § 1322(b)(5), holding that the “fairness” determination is applicable to long term debt under the section, and the" }, { "docid": "1181051", "title": "", "text": "for discriminatory treatment where plan proposed to pay 40% to student loans and 8% to general unsecured creditors). Prior to the Code amendments in 1990 that made student loans generally non-dischargeable in Chapter 13, some courts addressing the question required debtors to treat their student loan indebtedness as long term debt under Section 1322(b)(5) in order to have their Chapter 13 plans confirmed. In re McKinney, 118 B.R. 968 (S.D.Ohio 1990); In re Newberry 84 B.R. 681 (Bankr.E.D.Cal.1988); In re Geehan, 59 B.R. 600 (Bankr.S.D.Ohio 1986); but see In re Winthurst, 97 B.R. 457 (Bankr.C.D.Ill.1989). Such treatment would require the debtor to cure any arrearage in the student loan indebtedness within a reasonable time and maintain regular payments during the pendency of the plan. 11 U.S.C. Section 1322(b)(1). Since the 1990 amendments, the rationale for such treatment is even stronger. Although the most common circumstance where Section 1322(b)(5) comes into play is to cure defaults on residential mortgages, the use of Section 1322(b)(5) is not limited to secured claims or residential mortgages. 5 Collier on Bankruptcy Paragraph 1322.09 (Lawrence P. King, ed. 15th ed. 1991). Since student loan' liability now typically survives a Chapter 13 bankruptcy, Section 1322(b)(5) is directly applicable where the final payment date of the loan falls after the end of the Chapter 13 plan. Any other treatment that discriminates in favor of student loan creditors at the expense of the other unsecured creditors where the final scheduled student loan payment falls due after the end of the plan is unfairly discriminatory. In view of the foregoing, the motion of the Kansas City Credit Union to reconsider confirmation of debtor’s plan is GRANTED. Confirmation of the plan is withdrawn pending amendment of the plan within 30 days to treat student loan indebtedness as long term debt in accordance with Section 1322(b)(5). The foregoing Memorandum Opinion constitutes Findings of Fact and Conclusions of Law as required under rule 7052, Rules of Bankruptcy. SO ORDERED." }, { "docid": "100552", "title": "", "text": "construction that “all words and provisions of statutes are intended to have meaning and are to be given effect, and no construction should be adopted which would render statutory words or phrases meaningless, redundant or superfluous.” IV. DISCUSSION A. Applicable Law As the Trustee has raised the issue of whether the Debtor’s plan unfairly discriminates, the Debtor has the burden of persuading this Court that the classification and treatment of the HEAL loan arrearage does not discriminate unfairly and that her plan meets the requirements of § 1325 and is confirmable. In re Regine, 234 B.R. 4, 6 (Bankr.D.R.I.1999); In re Colfer, 159 B.R. 602, 608 (Bankr.D.Maine 1993). Section 1322 sets forth mandatory and discretionary provisions for Chapter 13 plans. It is well recognized that the nondischargeability of student loan debt is not a sufficient ground to permit separate classification and more favorable treatment of such debt. In re Sullivan, 195 B.R. 649, 654 (Bankr.W.D.Tex.1996); In re Colfer, 159 B.R. at 603. See also In re Chandler, 210 B.R. 898, 901 (Bankr.D.N.H.1997); In re Sautter, 133 B.R. 148, 149 (Bankr.W.D.Mo.1991). In Sautter, however, the court, while finding that separate classification based upon nondischargeability constituted unfair discrimination, suggested that treatment of the loan as a long term debt under § 1322(b)(5) would be acceptable. The court determined that “permitting debtors to maintain their payments to [unsecured creditors] at the full contract rate, as expressly permitted by § 1322(b)(5) is not ‘unfair’ discrimination” and pursuant to that section “debtors may cure any defaults that exist and may maintain contractual payments as required for long-term unsecured debt” during the term of the plan. 133 B.R. at 150. The court observed the following: Debtor need only formulate a plan which treats her student loans as long term indebtedness under section 1322(b)(5). Even though such treatment may require treating student loans differently than other unsecured debt, it cannot be said that it would unfairly discriminate because the treatment would be in full accordance with code provisions. It is also consistent with the “fresh start” philosophy of the Code to insure that debtor emerges from her" }, { "docid": "6337480", "title": "", "text": "See Fontaine, 27 B.R. at 614-15 (quoting legislative history); accord 8 Collier on Bankruptcy ¶ 1322.09[2], at 1322-30 (Lawrence P. King et al. eds., 15th ed. rev.2000). In fact, “[i]n the face of a trend disfavoring the separate classification of student loans in Chapter 13 cases, the debtor’s best position may be long-term treatment [of the student loan debt] under § 1322(b)(5).... ” 2 Keith M. Lundin, Chapter 13 Bankruptcy § 153.1, at 153-9 (3d. ed. rev.2000) (footnote omitted). In approaching the interplay between §§ 1322(b)(1) and (b)(5) as to student loan debt, bankruptcy courts have developed two main approaches to deal with unfair discrimination. See In re Colley, 260 B.R. 532, 535-38 (Bankr.M.D.Fla.2000) (noting a majority and a minority approach). A majority of courts have read these two provisions together and require a plan proposing to deal with long-term debt under (b)(5) to also pass the unfair discrimination test of (b)(1). See In re Thibodeau, 248 B.R. 699, 704 (Bankr.D.Mass.2000). Indeed, one treatise states that it does not follow that every separate classification of a long-term claim under § 1322(b)(5) is necessarily a fair discrimination .... If there are other unsecured claims, [then] any plan proposal to ... [deal with long-term student loan] debt under § 1322(b)(5) will be a separate classification tested against the unfair-discrimination standard in § 1322(b)(1). Lundin, supra, § 155.2, at 155-3. Therefore, the majority view reasons that [i]f Congress had wanted courts not to consider whether putting unsecured creditors in a separate class and providing for full monthly payments on the unsecured creditors’ claims during the course of the plan constituted unfair discrimination, Congress would have drafted section 1322(b)(5) to read “notwithstanding paragraphs (1) and (2) of this subsection, a plan may provide for the curing of any default ... and maintenance of payments.... ” Congress did not draft the statute in such a manner. Colley, 260 B.R. at 536-37 (quoting In re Chandler, 210 B.R. 898, 903-04 (Bankr.D.N.H.1997) (footnote and brackets omitted)). In Thibodeau, the debtor proposed to cure her student loan arrearages through her plan while maintaining her monthly loan payments outside" }, { "docid": "15734693", "title": "", "text": "confirm a plan that provides for cure of arrearages and maintenance of contractual payments on a student loan obligation on which the last payment is due after the date on which the final payment under the plan is due. CONCLUSIONS OF LAW 1. ARE LONG-TERM NONDIS-CHARGEABLE STUDENT LOAN DEBTS EXEMPT FROM “UNFAIR DISCRIMINATION” SCRUTINY? A. Discrimination on the basis of non-dischargeability is per se unfair under § 1322(b)(1). Section 1322(b)(1) reads, in relevant part, (b) Subject to subsections (a) and (c) of this section, the plan may— (1) designate a class or classes of unsecured claims, as provided in section 1122 of this title, but may not discriminate unfairly against any class so designated ... 11 U.S.C. § 1322(b)(1) (2000). This provision implements the principle of “equal treatment and strict prioritization of claims” that, in tandem with the “fresh start” policy, provides the normative backbone of the Code. See In re Chandler, 210 B.R. 898, 902 (Bankr.D.N.H.1997). A debtor bears the burden of showing that a plan does not discriminate unfairly. See Groves v. LaBarge, (In re Groves), 39 F.3d 212, 214 (8th Cir.1994). Section 1328(a)(2) provides, in relevant part, (a) As soon as practicable after completion by the debtor of all payments under the plan ... the court shall grant the debtor a discharge of all debts provided for by the plan ... except any debt— (2) of the kind specified in paragraph (5), (8), or (9) of section 523(a) of this title . . . 11 U.S.C. § 1328(a)(2) (2000). Section 523(a)(5) provides for the exception from discharge of child support obligations. See 11 U.S.C. § 523(a)(5) (2000). Section 523(a)(8) provides for the exception from discharge of federally guaranteed student loans. See 11 U.S.C. § 523(a)(8) (2000). Section 523(a)(9) provides for the exception from discharge of debt incurred as the result of death or personal injury caused by a debtor’s operation of a motor vehicle while intoxicated. See 11 U.S.C. § 523(a)(9) (2000). The completion of a Chapter 13 plan does not discharge these three types of debt. Completion of a plan discharges every other debt no matter" }, { "docid": "19283776", "title": "", "text": "2002. The last payment under their Chapter 13 plan is due September 1998. Accordingly, the last payment on the debtors’ student loans is due after the date on which the final payment under the plan is due. Other courts interpreting this statutory section have also held that debtors may use section 1322(b)(5) to justify different treatment of student loan debt under a Chapter 13 plan in order to cure arrearages and maintain payments on their student loan debts during the term of the plan. See, e.g., In re Cox, 186 B.R. 744 (Bankr.N.D.Fla.1995); In re Anderson, 173 B.R. 226, 229 (Bankr.D.Col.1993); In re Benner, 156 B.R. 631 (Bankr.D.Minn.1993); In re Saulter, 133 B.R. 148, 150 (Bankr.W.D.Mo.1991); In re McKinney, 118 B.R. 968 (S.D.Ohio 1990). Clearly, section 1322(b)(5) evidences an intent by Congress to allow for different treatment of long-term debt. Although section 1322(b)(5) is not limited on its face to situations involving nondischargeable, long-term unsecured debt, the Court notes that in reality only in cases involving student loans and marital debt will section 1322(b)(5) be used, because a Chapter 13 debtor has no reason to “cure and maintain” dischargeable debt. As long as plan payments are being made, unsecured creditors being paid through the Chapter 13 plan can take no action even on long-term debt. In summary, pursuant to section 1322(b)(5) of the Bankruptcy Code, debtors may cure any defaults that exist and may maintain contractual payments as required for long-term unsecured debt, like student loans, during the term of their Chapter 13 plan. Debtors may not accelerate payments or make any payment other than those necessary to cure defaults and keep current on the loan in accordance with the statute. The Court observes that in such cases it may be beneficial to other unsecured creditors to have the debtors make such current payments on long-term unsecured debt directly to the creditor, as permitted by section 1326(e) of the Bankruptcy Code, rather than through the Chapter 13 Trustee, in order to avoid a further reduction of the pool of monies available for other unsecured creditors because of the Chapter 13" }, { "docid": "6337479", "title": "", "text": "extending beyond the plan term), we left open the possibility that long-term student loan debt could be separately classified in accordance with § 1322(b)(5). Id. at 659. We noted that the classification of student loan debt under § 1322(b)(5) might serve as a way to satisfy the second element of the Wolff test. Id. Turning to § 1322(b)(5), it allows a debt- or to maintain contract payments on long-term debt, whether secured or unsecured, while curing any arrearage that might exist through a chapter 13 plan. See Batt v. Fontaine (In re Fontaine), 27 B.R. 614, 614-15 (9th Cir. BAP 1982). “Long-term debt” is defined as “any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due.” 11 U.S.C. § 1322(b)(5). While § 1322(b)(5) has traditionally been applied to home mortgages, its applicability is not limited to such debts. By its own terms, § 1322(b)(5) applies to student loan debt that matures after the debtor completes a chapter 13 plan. See Fontaine, 27 B.R. at 614-15 (quoting legislative history); accord 8 Collier on Bankruptcy ¶ 1322.09[2], at 1322-30 (Lawrence P. King et al. eds., 15th ed. rev.2000). In fact, “[i]n the face of a trend disfavoring the separate classification of student loans in Chapter 13 cases, the debtor’s best position may be long-term treatment [of the student loan debt] under § 1322(b)(5).... ” 2 Keith M. Lundin, Chapter 13 Bankruptcy § 153.1, at 153-9 (3d. ed. rev.2000) (footnote omitted). In approaching the interplay between §§ 1322(b)(1) and (b)(5) as to student loan debt, bankruptcy courts have developed two main approaches to deal with unfair discrimination. See In re Colley, 260 B.R. 532, 535-38 (Bankr.M.D.Fla.2000) (noting a majority and a minority approach). A majority of courts have read these two provisions together and require a plan proposing to deal with long-term debt under (b)(5) to also pass the unfair discrimination test of (b)(1). See In re Thibodeau, 248 B.R. 699, 704 (Bankr.D.Mass.2000). Indeed, one treatise states that it does not follow that every separate classification of" }, { "docid": "6337481", "title": "", "text": "a long-term claim under § 1322(b)(5) is necessarily a fair discrimination .... If there are other unsecured claims, [then] any plan proposal to ... [deal with long-term student loan] debt under § 1322(b)(5) will be a separate classification tested against the unfair-discrimination standard in § 1322(b)(1). Lundin, supra, § 155.2, at 155-3. Therefore, the majority view reasons that [i]f Congress had wanted courts not to consider whether putting unsecured creditors in a separate class and providing for full monthly payments on the unsecured creditors’ claims during the course of the plan constituted unfair discrimination, Congress would have drafted section 1322(b)(5) to read “notwithstanding paragraphs (1) and (2) of this subsection, a plan may provide for the curing of any default ... and maintenance of payments.... ” Congress did not draft the statute in such a manner. Colley, 260 B.R. at 536-37 (quoting In re Chandler, 210 B.R. 898, 903-04 (Bankr.D.N.H.1997) (footnote and brackets omitted)). In Thibodeau, the debtor proposed to cure her student loan arrearages through her plan while maintaining her monthly loan payments outside the plan. See Thibodeau, 248 B.R. at 700. Under the plan, other unsecured creditors were to receive 27% of their claims. Id. The trustee argued that this constituted unfair discrimination, and the debtor countered that this type of classification was permitted by § 1322(b)(5). Id. at 701-02. Even though § 1322(b)(5) was applicable, the court held that the debtor had to show that the classi fication was fair under § 1322(b)(1). Id. at 704. The Thibodeau court then applied the Wolff test and held that the debtor’s plan unfairly discriminated against unsecured creditors. The bankruptcy court found that the plan could not satisfy the good faith element because the debtor had not devoted all of her excess income toward the plan and “discrepancies exist[ed] between proofs of claim and their treatment under the [p]lan.” Id. at 705. The bankruptcy court reasoned that “a [pjlan that proposes to discriminate against a class of creditors is not filed in good faith where the [d]ebtor does not apply the entire amount of her excess income towards paying her" }, { "docid": "20249922", "title": "", "text": "any other unsecured claim; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; ... 11 U.S.C. § 1322 (emphasis added). The Debtor has the burden of showing that the proposed classification does not discriminate unfairly under § 1322(b)(1). Groves v. LaBarge (In re Groves), 39 F.3d 212, 214 (8th Cir.1994); In re Gonzalez, 206 B.R. 239, 242 (Bankr.S.D.Fla.1997). Since the Bankruptcy Code is silent as to the meaning of “unfair,” courts have used various tests when determining the fairness of discrimination. The Eighth Circuit developed a four-pronged test in which a court must determine: (1) whether the discrimination has a reasonable basis; (2) whether the debtor can carry out a plan without discrimination; (3) whether the discrimination is proposed in good faith; and (4) whether the degree of discrimination is directly related to the basis or rationale for the discrimination. In re Leser, 939 F.2d 669 (8th Cir.1991). However, this test has been criticized. See, e.g., In re Colley, 260 B.R. 532, 539 (Bankr.M.D.Fla.2000). Some courts have found that § 1322(b)(5) explicitly authorizes payments on long-term student loan debt during the life of a Chapter 13 plan, making such discrimination fair. See In re Cox, 186 B.R. 744, 746 (Bankr.N.D.Fla.1995), In re Chandler, 210 B.R. 898, 900 (Bankr.D.N.H.1997). But other courts have held that § 1322(b)(5) prohibits discrimination in favor of student loan creditors unless the proposal passes the “unfair discrimination” scrutiny of § 1322(b)(1). See, e.g., In re Pora, 353 B.R. 247, 252 (Bankr.N.D.Cal.2006). Given the lack of uniformity in the approaches taken, many courts have held that determinations of fairness under § 1322(b)(1) should be made on a case-by-case basis. See, e.g., In re Etheridge, 297 B.R. 810, 816 (Bankr.M.D.Ala.2003); In re Colfer, 159 B.R. 602, 611 (Bankr.D.Me.1993). Congress amended the Bankruptcy Code in 1990 to make the § 523(a)(8) student loan nondischargeability" } ]

[ { "docid": "10888885", "title": "", "text": "issue * * * for there is an overriding federal policy favoring arbitration.” Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968). The plaintiff here has made no showing of any prejudice resulting to it from a stay of this suit pending the outcome of the arbitration proceedings. Therefore, the motion of defendant is granted, provided, however, that the plaintiff will be permitted to return to this Court for such further relief as is appropriate if the defendant does not pursue the arbitration with due diligence. So ordered. . Yet the law is clear that participation in a law suit, standing alone, does not constitute a waiver; Chatham Shipping Co. v. Fertex Steamship Corp., 352 F.2d 291 (2d Cir. 1965) (filing complaint not waiver); Reynolds Jamaica Mines, Ltd. v. La Societe Navale Caennaise, 239 F.2d 689 (4th Cir. 1956) (asserting counterclaim not waiver); Rootes Motors, Inc. v. SS Carina, 1964 A.M.C. 2754 (S.D.N.Y.1964) (filing answer without mentioning arbitration not waiver); Kulukundis Shipping Co., S/A v. Amtorg Trading Corp., 126 F.2d 978 (2d Cir. 1942) (assenting to statement of readiness for trial and to placing of case on ready day calendar not waiver). Contra, T. J. Stevenson & Co. v. The M/S Dundalk Bay, 147 F.Supp. 23 (S.D.N.Y.1957); Instituto Cubano De Establizacion Del Azucar v. The SS Rodestar, 143 F.Supp. 599 (S.D.N.Y.1956)." } ]

[ { "docid": "21891865", "title": "", "text": "112 (S.D.N.Y.1974) ; Noble v. Desco Shoe Corp., 41 A.D.2d 908, 343 N.Y.S.2d 134, 136 (1973). . Bloomfield cannot, of course, be compelled to arbitrate his 10b-5 claim. Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). See also Laupheimer v. McDonnell & Co., 500 F.2d 21 (2d Cir. 1974). . Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009, 1017 (2d Cir. 1972) ; Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966). . Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968) ; see Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 (2d Cir. 1942). . Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968). . See Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966) ; E. I. Du Pont de Nemours & Co. v. Lyles & Lang Const. Co., 219 F.2d 328, 334 (4th Cir.), cert. denied, 349 U.S. 956, 75 S.Ct. 882, 99 L.Ed. 1280 (1955) ; Radiator Specialty Co. v. Cannon Mills, 97 F.2d 318, 319 (4th Cir. 1938) ; of. Demsey & Associates v. S.S. Sea Star, 461 F.2d 1009, 1017-1018 (2d Cir. 1972) ; Hilti, Inc. v. Oldach, 392 F.2d 368, 372 n. 9 (1st Cir. 1968) ; Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 (2d Cir. 1942) ; Milton Schwartz & Associates v. Magness Corp., 368 F.Supp. 749, 752 (D.Del.1974). But cf. Carolina Throwing Co. v. S. & E. Novelty Corp., 442 F.2d 329 (4th Cir. 1971). . See Demsey & Associates v. S.S. Sea Star, 461 F.2d 1009, 1018 (2d Cir. 1972) ; Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966) ; Graig Shipping Co. v. Midland Overseas Shipping Corp., 259 F.Supp. 929, 931 (S.D.N.Y.1966) ; cf. Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 n. 7 (2d Cir. 1968) ; Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 n. 40 (2d Cir. 1942)." }, { "docid": "7042231", "title": "", "text": "Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). . Harris Structural Steel Co. v. United Steelworkers of America, AFL-CIO, Local 3682, 298 F.2d 363 (C.A.3, 1962); Radio Corp. of America v. Association of Professional Engineering Personnel, 291 F.2d 105 (C.A.3, 1961); International Telephone & Telegraph Corp. v. Local 400, Professional, Technical and Salaried Div., International Union of Electrical Workers, 290 F.2d 581 (C.A.3, 1961); International Molders Union v. Susquehanna Casting Co., 283 F.2d 80-(C.A.3, 1960); Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 283 F.2d 93 (C.A.3, 1960). . Drake Bakeries, Inc. v. Local 50, American Bakery Workers, 294 F.2d 399 (C.A.2, 1961), cert. granted Jan. 22,. 1962, 82 S.Ct. 840; Signal-Stat Corp. v. Local 475, United Electrical Workers, 235 F.2d 298 (C.A.2, 1956), cert. denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428 (1957); Tenney Engineering Co. v. Electrical Workers, Local 437, 174 F.Supp. 878 (D.C.N.J.1959); Armstrong-Norwalk Rubber Corp. v. Local 283, United Rubber Workers, 167 P.Supp. 817 (D.Conn.1958); Pennsylvania Greyhound Lines v. Amalgamated Assn, of Street Employees, 98 F.Supp. 789 (W.D. Pa.1951), reversed on other grounds, 193 F.2d 327 (C.A.3, 1952); Lewittes & Sons v. United Furniture Workers of America, 95 F.Supp. 851 (S.D.N.Y.1951). See Hudson Wholesale Grocery Co. v. Allied Trades Council, 3 N.J.Super. 327, 65 A.2d 557 (1949). . Structural Steel & Ornamental Iron Ass’n of New Jersey, Inc. v. Shopmens Local Union 545, 172 P.Supp. 354 (D. N.J.1959); Harria Hub Bed &, Spring Co. v. United Electrical Workers of America, 121 P.Supp. 40 (M.D.Pa.1954); Metal Polishers International Union Local 90 v. Rubin, 85 F.Supp. 363 (E.D. Pa.1949). . The provisions of the arbitration clause can be found in Lewittes & Sons v. United Furniture Workers of America, 95 F.Supp. 851, 853 (S.D.N.Y.1951). GANEY, Circuit Judge (dissenting). The question here involved is whether or not the right to strike, Section 28.0 under Article XXVIII, of the Collective Bargaining Agreement between The Yale & Towne Manufacturing Company and the three Union defendants, is within the purview of the Grievance Procedure, as set forth in Article XXIV thereof. The narrow" }, { "docid": "16749148", "title": "", "text": "but apparently no one questioned jurisdiction in either case. Indeed, federal courts have had difficulty explicitly characterizing this unique business entity. They have described anstalts as: “corporation[s] ... similar to a one-man corporation,” Kraus v. Commissioner, 59 T.C. 681, 685 (1973); “trust[s],” Ronson Corp. v. Liquifin A.G., 370 F.Supp. 597, 603 (D.N.J.), aff'd, 497 F.2d 394 (3d Cir.), cert. denied, 419 U.S. 870, 85 S.Ct. 129, 42 L.Ed.2d 108 (1974); and “business entitpes] peculiar to Liechtenstein,” United States v. Koenig, 388 F.Supp. 670, 692 (S.D.N.Y.1974). However, we need not resolve the question of which common law entity anstalts most nearly resemble. Section 1332(a)(2) applies to foreign legal entities of all kinds, so long as the entity is considered a juridical person under the law that created it. See, e.g., Fasco, A.G. v. Modernage, Inc., 311 F.Supp. 161, 162 (W.D.Pa.1970) (foreign Aktiengesellschaft creates diversity under 1332(a)(2)); Batson Yarn and Fabrics Machinery Group, Inc. v. Saurer-Allma GmbH-Allgauer Machinebau, 311 F.Supp. 68, 70 (D.S.C.1970) (GmbH creates diversity under 1332(a)(2)). We have no doubt that Liechtenstein regards anstalts as juridical persons under its laws. Anstalts have liability limited to their capitalization and can both sue and be sued in their own names. Any recovery by an anstalt in such litigation becomes an asset of the anstalt. Moreover, the relevant Liechtenstein statute states that an anstalt “is a legally independently organized enterprise ... subject to the regulations governing trust companies with juridical personality.” Das Personenund Gessellschaftsrecht, art. 534 (LLGB1. 1926 No. 4, as amended) (translated) (emphasis added). Like the sociedad in Russell, the anstalt presents an exotic creation of the civil law that is regarded as a juridical person by the law that created it. See also P. Marxer and A. Goop, The formation of undertakings in Liechtenstein A Guide 19 (n.d.) (“The Establishment [anstalt] is a very unusual form of an institution of civil law with legal personality.”). We therefore conclude that Film Productions is a “citizen or subject” of Liechtenstein for purposes of 28 U.S.C. § 1332(a)(2) and the district court had jurisdiction to hear this case. This case might require application of" }, { "docid": "4197517", "title": "", "text": "anew. Accordingly, defendant’s motion must be, and hereby is, in all respects denied. So ordered. . Agreement of July 23, 1969 between Weight Watchers International, Inc. and Weight Watchers of Manitoba, Ltd., Sec. 9.1 at 6-7, Agreement of June 22, 1972 between Weight Watchers International, Inc. and Weight Watchers of Quebec, Ltd., Sec. 8.1 at 30. . American Locomotive Co. v. Gyro Process Co., 185 F.2d 316, 318-19 (6 Cir. 1950); Radiator Specialty Co. v. Cannon Mills, 97 F.2d 318 (4 Cir. 1938); La Nacional Platanera, S.C.L. v. North American Fruit & Steamship Corporation, 84 F.2d 881 (5 Cir. 1936); Liggett & Myers Incorporated v. Bloomfield, supra, 380 F.Supp. at 1047-48; United Nations Children’s Fund v. S/S Nordstern, 251 F.Supp. 833, 840 (S.D.N.Y.1966); Sucrest Corporation v. Chimo Shipping Limited, 236 F.Supp. 229 (S.D.N.Y.1964). . Demsey & Associates v. S. S. Sea Star, supra, 461 F.2d at 1018; Liggett & Myers Incorporated v. Bloomfield, supra. . Gutor International AG v. Raymond Packer Co., Inc., 493 F.2d 938, 945 (1 Cir. 1974); Burton-Dixie Corporation v. Timothy McCarthy Construction Company, supra, 436 F.2d at 408-09; Cornell & Company v. Barber & Ross Company, supra; E. I. du Pont de Nemours & Company v. Lyles & Lang Construction Company, 219 F.2d 328, 334 (4 Cir.) (dictum), cert. denied, 349 U.S. 956, 75 S.Ct. 882, 99 L.Ed. 1280 (1955); American Locomotive Co. v. Gyro Process Co., supra; American Locomotive Co. v. Chemical Research Corporation, 171 F.2d 115, 121-22 (6 Cir. 1948); cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949); Galion Iron Works & Mfg. Co. v. J. D. Adams Mfg. Co., 128 F.2d 411, 413 (7 Cir. 1942); Radiator Specialty Co. v. Cannon Mills, supra; La Nacional Platanera, S.C.L. v. North American Fruit & Steamship Corporation, supra; Liggett & Myers Incorporated v. Bloomfield, supra; Graig Shipping Co. v. Midland Overseas Shipping Corporation, 259 F.Supp. 929 (S.D.N.Y.1966); United Nations Children’s Fund v. S/S Nordstern, supra; Instituto Cubano de Establizacion Del Azucar v. The S/S Rodestar, 143 F.Supp. 599 (S.D.N.Y.1956); Cargo Carriers v. Erie & St. Lawrence Corp., 105 F.Supp. 638 (W.D.N.Y.1952); The" }, { "docid": "4197509", "title": "", "text": "468 F.2d 1064, 1068-69 (2 Cir. 1972). Here, the arbitration provisions are within contracts which, as is clear from the court’s review of the summary judgment motion, evidence extensive commercial dealings between the parties across international boundaries, including, inter alia, the granting of franchises by a New York corporation to foreign corporations, to be exercised in the foreign jurisdiction. That is sufficient to fall within the definition “commerce among the several States or with foreign nations” used in 9 U.S.C. § 1, also the definition of “commerce” for purposes of 9 U.S.C. § 2. Prima Paint Corp. v. Flood & Conklin Mfg. Co., supra. See Bigge Crane & Rigging Co. r. Docutel Corporation, 371 F.Supp. 240, 243 (E.D.N.Y.1973); Batson Yarn and Fabrics Machinery Group, Inc. r. Saurer-Allma GmbH-Allgauer Maschinenbau, 311 F.Supp. 68, 70 (D.S.C.1970). II. The more seriously contested issue here is waiver. Both sides acknowledge that the contractual right to arbitrate can be waived. Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009, 1017 (2 Cir. 1972); Cornell & Company v. Barber & Ross Company, 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966). Since there is a strong federal policy favoring arbitration, id., a waiver “is not to be lightly inferred, and mere delay in seeking a stay of the proceedings with out some resultant prejudice to a party . cannot carry the day.” Car-cich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2 Cir. 1968) (citation and footnotes omitted); Liggett & Myers Incorporated v. Bloomfield, 380 F.Supp. 1044, 1047 (S.D.N.Y.1974). And where, as here, the issue of waiver turns on the significance of actions taken in a judicial forum, the issue is one for the court, rather than the arbitrator, to decide. See In re Tsakalotos Navigation Corp., 259 F.Supp. 210, 213 (S.D.N.Y. 1966). General formulations of what constitutes a waiver in a particular case are of limited usefulness, as the decision normally turns not on some mechanical act but on all the facts of the case. Carolina Throwing Company v. S & E Novelty Corporation, 442 F.2d 329, 330-31 (4 Cir. 1971); Burton-Dixie Corporation v." }, { "docid": "4197519", "title": "", "text": "Belize, 25 F.Supp. 663 (S.D.N.Y.1938), appeal dismissed, 101 F.2d 1005 (2 Cir. 1939). . See Erving v. Virginia Squires Basketball Club, supra, 468 F.2d at 1068; ITT World Communications, Inc. v. Communications Workers of America, AFL-CIO, 422 F.2d 77, 82-83 (2 Cir. 1970); Carcich v. Rederi A/B Nordie, supra, 389 F.2d at 696; Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402, 412-13, (2 Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960); Almacenes Fernandez, S. A. v. Golodetz, 148 F.2d 625, 627-28 (2 Cir. 1945); Kulukundis Shipping Co., S/A v. Amtorg Trading Corporation, 126 F.2d 978, 989-91 (2 Cir. 1942); Germany v. River Terminal Railway Company, 477 F.2d 546 (6 Cir. 1973); Howard Hill, Inc. v. George A. Fuller Company, Inc., 473 F.2d 217 (5 Cir. 1973); Hart v. Orion Insurance Company, 453 F.2d 1358, 1360-61 (10 Cir. 1971); Carolina Throwing Company v. S & E Novelty Corporation, supra; General Guaranty Insurance Company v. New Orleans General Agency, Inc., 427 F.2d 924 (5 Cir. 1970); Hilti, Inc. v. Oldach, 392 F.2d 368 (1 Cir. 1968); Reynolds Jamaica Mines v. La Societe Navale Caennaise, 239 F.2d 689, 692-93 (4 Cir. 1956); Macchiavelli v. Shearson, Hammill & Co., Incorporated, 384 F.Supp. 21, 26 (E.D.Cal.1974); Bigge Crane & Rigging Co. v. Docutel Corporation, supra, 371 F.Supp. at 244; Milton Schwartz & Associates, Architects v. Magness Corporation, 368 F.Supp. 749 (D.Del.1974); Batson Yarn and Fabrics Machinery Group, Inc. v. Saurer-Allma GmbH-Allgauer Maschinenbau, supra, 311 F.Supp. at 72-74; G. B. Michael v. SS Thanasis, 311 F.Supp. 170, 181-82 (N. D.Cal.1970); Commercial Metals Company v. International Union Marine Corporation, 294 F.Supp. 570, 573-74 (S.D.N.Y.1968); Mason v. Stevensville Golf and Country Club, Inc., 292 F.Supp. 348 (S.D.N.Y.1968); Lumbermens Mutual Casualty Company v. Borden Company, 268 F.Supp. 303, 311-13 (S.D.N.Y.1967); Necchi Sewing Machine Sales Corp. v. Carl, 260 F.Supp. 665, 667-69 (S.D.N.Y.1966); In re Tsakalotos Navigation Corp., supra, 259 F.Supp. at 212-14; Rootes Motors, Inc. v. Steamship Carina, 1964 A.M.C. 2754 (S.D.N.Y.); Cavac Compania Anonima Venezolana de Administracion" }, { "docid": "4197518", "title": "", "text": "Construction Company, supra, 436 F.2d at 408-09; Cornell & Company v. Barber & Ross Company, supra; E. I. du Pont de Nemours & Company v. Lyles & Lang Construction Company, 219 F.2d 328, 334 (4 Cir.) (dictum), cert. denied, 349 U.S. 956, 75 S.Ct. 882, 99 L.Ed. 1280 (1955); American Locomotive Co. v. Gyro Process Co., supra; American Locomotive Co. v. Chemical Research Corporation, 171 F.2d 115, 121-22 (6 Cir. 1948); cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949); Galion Iron Works & Mfg. Co. v. J. D. Adams Mfg. Co., 128 F.2d 411, 413 (7 Cir. 1942); Radiator Specialty Co. v. Cannon Mills, supra; La Nacional Platanera, S.C.L. v. North American Fruit & Steamship Corporation, supra; Liggett & Myers Incorporated v. Bloomfield, supra; Graig Shipping Co. v. Midland Overseas Shipping Corporation, 259 F.Supp. 929 (S.D.N.Y.1966); United Nations Children’s Fund v. S/S Nordstern, supra; Instituto Cubano de Establizacion Del Azucar v. The S/S Rodestar, 143 F.Supp. 599 (S.D.N.Y.1956); Cargo Carriers v. Erie & St. Lawrence Corp., 105 F.Supp. 638 (W.D.N.Y.1952); The Belize, 25 F.Supp. 663 (S.D.N.Y.1938), appeal dismissed, 101 F.2d 1005 (2 Cir. 1939). . See Erving v. Virginia Squires Basketball Club, supra, 468 F.2d at 1068; ITT World Communications, Inc. v. Communications Workers of America, AFL-CIO, 422 F.2d 77, 82-83 (2 Cir. 1970); Carcich v. Rederi A/B Nordie, supra, 389 F.2d at 696; Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402, 412-13, (2 Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960); Almacenes Fernandez, S. A. v. Golodetz, 148 F.2d 625, 627-28 (2 Cir. 1945); Kulukundis Shipping Co., S/A v. Amtorg Trading Corporation, 126 F.2d 978, 989-91 (2 Cir. 1942); Germany v. River Terminal Railway Company, 477 F.2d 546 (6 Cir. 1973); Howard Hill, Inc. v. George A. Fuller Company, Inc., 473 F.2d 217 (5 Cir. 1973); Hart v. Orion Insurance Company, 453 F.2d 1358, 1360-61 (10 Cir. 1971); Carolina Throwing Company v. S & E Novelty Corporation, supra; General Guaranty Insurance Company v. New" }, { "docid": "2180606", "title": "", "text": "California as against individual defendants Woosnam, Toye, McGuire, and Flamhaft by reason of the co-conspirator theory of the Giusti case. It is so ordered. . ABO Great States, Inc. v. Globe Ticket Company, 304 F.Supp. 1052, 1059 (N.D.Ill.1969) ; Adams Dairy Company v. National Dairy Products Corp., 293 F.Supp. 1135, 1141 (W.D.Mo.1968) ; Philadelphia Hous. Auth. v. American Radiator & S. San. Corp., 291 F.Supp. 252, 259 (E.D.Pa.1968) ; Edward J. Moriarty & Co., v. General Tire & Rubber Co., 289 F.Supp. 381, 387 (S.D.Ohio 1967) ; Hawkins v. National Basketball Association, 288 F.Supp. 614, 620 (W.D.Pa.1968) ; School Dist. of Philadelphia v. Harper & Row Publishers, Inc., 267 F.Supp. 1006, 1009 (E.D.Pa.1967) ; State of New York v. Morton Salt Company, 266 F.Supp. 570, 576 (E.D.Pa.1967). But see Albert Levine Associates v. Bertoni & Cotti, 309 F.Supp. 456, 460-461 (S.D.N.Y.1970) ; State of Illinois v. Harper & Row Publishers, Inc., 308 F.Supp. 1207, 1211 (N.D.Ill.1969). Cf. Bruns, Nordeman & Co. v. American Bank & Trust Co., 394 F.2d 300, 303 (2d Cir. 1968). . Although Clayton Act § 4 is phrased in the present tense, leading several courts to conclude that the defendant (s) must reside or be found in the district of suit at the time suit is brought, the Ninth Circuit and some other courts and commentators have reached a contrary position, finding venue, to be determined as of the time the cause of action accrued. Compare Hawkins, supra, 288 F.Supp. at 615; Herpst v. S. B. I. Liquidating Corporation, 279 F.Supp. 928, 931 (E.D.Pa.1968) ; Stern Fish Co. v. Century Seafoods, Inc., 254 F.Supp. 151, 154 (E.D.Pa.1966) ; United Industrial Corp. v. Nuclear Corp. of America, 237 F.Supp. 971, 979 (D.Del.1964) ; Gem Corrugated Box Corporation v. Mead Corporation, 189 F.Supp. 584, 586 (S.D.N.Y.1960) ; K. J. Schwartzbaum, Inc. v. Evans, Inc., 44 F.R.D. 589, 591 (S.D.N.Y.1968) ; Dixie Carriers, Inc. v. National Maritime Union of America, 35 F.R.D. 365, 370 (S.D.Tex.1964), with Eastland Construction Co. v. Keasbey and Mattison Co., 358 F.2d 777, 780 (9th Cir. 1966) ; ABC Great States, Inc., supra, 304 F.Supp." }, { "docid": "6381593", "title": "", "text": "Puerto Rican Forwarding Co., Inc., 492 F.2d 1294 (1st Cir. 1974); In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 234, n. 24 (6th Cir.1972); Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341 (3rd Cir.1966); Wm. H. Muller & Co. v. Swedish American Line Ltd., 224 F.2d 806 (2d Cir.), cert. denied, 350 U.S. 903, 76 S.Ct. 182, 100 L.Ed. 793 (1955); Gaskin v. Stumm Handel GmbH, 390 F.Supp. 361 (S.D.N.Y.1975); St. Paul Fire & Marine Insurance Co. v. Travelers Indemnity Co., 401 F.Supp. 927 (D.Mass.1975); Davis v. Pro Basketball, Inc., 381 F.Supp. 1 (S.D.N.Y.1974); Brown v. Gingiss International, Inc., 360 F.Supp. 1042 (E.D.Wis.1973); Roach v. HapagLloyd, A.G., 358 F.Supp. 481 (N.D.Calif.1973); Spatz v. Nascone, 364 F.Supp. 967 (W.D.Penn.1973), supplemented, 368 F.Supp. 352 (1973); Jack Winter, Inc. v. Koratron Co., 326 F.Supp. 121 (N.D.Calif.1971); Goff v. AAMCO Transmissions, Inc., 313 F.Supp. 667 (D.Md.1970); A. C. Miller Concrete Products Corp. v. Quikset Vault Sales Corp., 309 F.Supp. 1094 (E.D.Penn.1970); Hawaii Credit Card Corp. v. Continental Credit Card Corp., 290 F.Supp. 848 (D.Hawaii 1968); National Equipment Rental, Ltd. v. Sanders, 271 F.Supp. 756 (E.D.N.Y.1967); Geiger v. Keilani, 270 F.Supp. 761 (E.D.Mich.1967); Indussa Corp. v. S.S. Ranborg, 260 F.Supp. 660 (S.D.N.Y.1966); Hernandez v. Koninklijke Nederlandsche Stoomboot Maat., 252 F.Supp. 652 (S.D.N.Y.1965); Euzzino v. London & Edinburgh Insurance Co., 228 F.Supp. 431 (N.D.Ill.1964); Pakhuismeesteren, S.A. v. S.S. Goettingen, 225 F.Supp. 888 (S.D.N.Y.1963); Takemura & Co. v. S. S. Tsuneshima Maru, 197 F.Supp. 909 (S.D.N.Y.1961); Texas San Juan Oil Corp. v. An-Son Offshore Drilling Co., 198 F.Supp. 284 (S.D.N.Y.1961); Chemical Carriers, Inc. v. L. Smit & Co.’s Internationale Sleepdienst, 154 F.Supp. 886 (S.D.N.Y.1957). . Furbee v. Vantage Press, Inc., 150 U.S.App.D.C. 326, 464 F.2d 835 (1972); Gaskin v. Stumm Handel GmbH, 390 F.Supp. 361 (S.D.N.Y.1975); Collins, Choice of Forum and the Exercise of Judicial Discretion—The Resolution of an Anglo-American Conflict, 22 Int’l & Comp. L.Q. 332 (1973). . Furbee, supra. . Id. . Furbee, supra; Matthiessen v. National Trailer Convoy, Inc., 294 F.Supp.1132 (D.Minn.1968). . The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972);" }, { "docid": "13405923", "title": "", "text": "of trial (Almacenes Fernandez, S. A. v. Golodetz, 148 F.2d 625, 627, 161 A.L.R. 1420 (2d Cir. 1945)); nor only raised the claim for the first time after submission of the matter on a motion for summary judgment (United Nations Children’s Fund v. S/S Nordstern, 251 F.Supp. 833, 840 (S.D.N.Y.1965)); nor had actually litigated the matter for over five years before expressly raising the question of arbitration (Sulphur Export Corporation v. Carribean Clipper Lines, Inc., 277 F. Supp. 632, 634 (E.D.La.1968)). The defendants here clearly and ex-plicity raised their claim to arbitration at the very outset of this proceeding by including a request for same in their answer. Courts have specifically held that this factor alone is sufficient to defeat a claim of waiver. Lumbermens Mutual Casualty Co. v. Borden Co., 268 F.Supp. 303, 312 and cases cited therein (S.D. N.Y.1967). See also Robert Lawrence Company, supra, 271 F.2d at 413; Kulukundis Shipping Co., supra, 126 F.2d at 989; In re Tsakalotos Navigation Corp., 259 F.Supp. 210, 213 (S.D.N.Y.1966). Defendants have continued to press their claim for arbitration throughout these proceedings, and while significant delay has occurred, it is if anything more the fault of plaintiffs than of defendants and has been occasioned by informal settlement attempts rather than purposeful delay. Waiver in a situation such as this is not lightly to be inferred, particularly when sought to be raised against the defendant(s). The test of waiver is not inconsistency, but whether the objecting party has been subjected to substantial prejudice. Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968); Commercial Metals Co. v. International Union Marine Corp., 294 F. Supp. 570, 573 (S.D.N.Y.1968). See generally 25 A.L.R.3d 1171, Annot.: Arbitration — Delay in Asserting Right. Clearly, the plaintiffs have had ample notice of the defendants’ claim to arbitration and have suffered no prejudice other than that occasioned by their own conduct. The finding of the court in Hilti, Inc. v. Oldach, 392 F.2d 368, at 372 (1st Cir. 1968) on similar facts is dispositive of the matter before us and bears repeating here: While the district" }, { "docid": "22228338", "title": "", "text": "31; Brown v. ITT Rayonier, Inc., 5 Cir. 1974, 497 F.2d 234. . See the last sentence quoted from 46 U.S.C. § 688 in note 1, supra. . 28 U.S.C. § 1391(c) (1970) establishes: A' corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes. . Bailiff v. Storm Drilling Co., E.D.Tex.1972, 356 F.Supp. 309; Baksay v. Rensellear Polytech Institute, S.D.N.Y.1968, 281 F.Supp. 1007; Carson v. Vance Trucking Lines, Inc., W.D.S.C. 1965, 245 F.Supp. 13; De George v. Mandata Poultry Co., E.D.Pa.1961, 196 F.Supp. 192; Johnstone v. York County Gas Co., E.D.Pa. 1961, 193 F.Supp. 709; Minter v. Fowler & Williams, Inc., E.D.Pa.l961; 194 F.Supp. 660; Garbe v. Humiston-Keeling and Co., E.D.Ill. 1956, 143 F.Supp. 776, rev’d on other grounds, 242 F.2d 923 (7 Cir.), cert. denied, 1957, 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55; Hintz v. Austenal Laboratories, Inc., E.D.N.Y.1952, 105 F.Supp. 187. Cf. Hawkins v. National Basketball Ass’n, W.D.Pa.1968, 288 F.Supp. 614; Junior Spice, Inc. v. Turbotville Dress, Inc., E.D.Pa. 1972, 339 F.Supp. 1189; Vance Trucking Co. v. Canal Insurance Co., 4 Cir. 1964, 338 F.2d 943. . Educational Development Corp. v. Economy Co., N.D.Okl.1973, 376 F.Supp. 287; Fuller & Dees Marketing Group, Inc. v. Outstanding American High School Students, M.D.Ala. 1972, 335 F.Supp. 913; Energy Resources Group, Inc. v. Energy Resources Corp., S.D.Tex.1969, 297 F.Supp. 232; Westerman v. Grow, S.D.N.Y. 1961, 198 F.Supp. 307; Sawyer v. Soaring Society of America, S.D.N.Y.1960, 180 F.Supp. 209; Jacobson v. Indianapolis Power & Light Co., N.D.Ind.1958, 163 F.Supp. 218. Cf. Joscar Co. v. Consolidated Sun Ray, Inc., E.D.N.Y.1963, 212 F.Supp. 634; Torres v. Continental Bus System, Inc., S.D.Tex.1962, 204 F.Supp. 347; Ruth v. Eagle-Picher Co., 10 Cir.1955, 225 F.2d 572. . The cases holding that a corporation is licensed to do business in all districts of the state from which it received the license are St. Joe Paper Co. v. Mullins Mfg. Corp., S.D.Ohio 1970, 311 F.Supp. 165; Bertha Bldg. Corp." }, { "docid": "22879232", "title": "", "text": "495; Perma Life Mufflers, Inc. v. International Parts Corp., 1968, 392 U.S. 134, 141-142, 88 S.Ct. 1981, 20 L.Ed.2d 982; Timken Roller Bearing Co. v. United States, 1951, 341 U.S. 593, 598, 71 S.Ct. 971, 95 L.Ed. 1199; Schine Chain Theatres, Inc. v. United States, 1948, 334 U.S. 110, 116, 68 S.Ct. 947, 92 L.Ed. 1245; United States v. Yellow Cab Co., 1947, 332 U.S. 218, 227, 67 S.Ct. 1560, 91 L.Ed. 2010. The Court has never indicated what, if any, are the limits of this doctrine. Handler, Through the Anti-Trust Looking Glass — Twenty-first Annual Antitrust Review, 57 Cal.L.Rev. 182-93 (1969). .On the other hand, it has been held that “a corporation cannot conspire with its officers or agents to violate the antitrust laws.” Chapman v. Rudd Paint & Varnish Company, 9 Cir., 1969, 409 F.2d 635, 643 n. 9. See Poller v. CBS, Inc., 1960, 109 U.S.App.D.C. 170, 284 F.2d 599, 603, rev’d on other grounds, 1962, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458; Goldlawr, Inc. v. Shubert, 3 Cir., 1960, 276 F.2d 614, 617; Nelson Radio & Supply Co., Inc. v. Motorola, Inc., 5 Cir., 1952, 200 F.2d 911, 914; Kemwell Automotive Corp. v. Ford Motor Co., S.D.N.Y., 1966 Trade Cas. ¶ 71,882; Sperry Rand Corp. v. Nassau Research & Dev. Associates, Inc., E.D.N.Y., 1957, 152 F.Supp. 91, 93; Johnny Maddox Motor Co. v. Ford Motor Co., W.D.Tex., 1960, 202 F.Supp. 103, 105; Alexander v. Texas Co., W.D.La., 1957, 149 F.Supp. 37, 45; Cott Beverage Corp. v. Canada Dry Ginger Ale, Inc., S.D.N.Y., 1956, 146 F.Supp. 300. The same rule has been applied to unincorporated divisions. See Poller v. CBS, Inc., supra; Deterjet Corp. v. United Aircraft Corp. (Hamilton Standard Div.), D.Del., 1962, 211 F.Supp. 348, 353-354; Johnny Maddox Motor Co. v. Ford Motor Co., supra. The decision of the trial court is the first that has not followed these cases. Its views are set out in Hawaiian Oke & Liquors, Ltd. v. Joseph E. Seagram & Sons, Inc., D.C., 272 F.Supp. 915. The trial court’s opinion has produced a spate of comment, pro and" }, { "docid": "4197508", "title": "", "text": "or the breach or performance thereof . . . .” Defendant claims that these agreements to arbitrate are within the scope of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., as contracts “evidencing a transaction involving commerce” within the meaning of 9 U.S.C. § 2. Relying on Conley v. San Carlo Oyera Co., 163 F.2d 310 (2 Cir. 1947), and defendant’s prior allegedly inconsistent position in Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 53 F.R.D. 647 (E.D.N.Y.), plaintiffs suggest the claims are not arbitrable. The court cannot subscribe to plaintiffs’ view, which in any event, was not strongly pressed. Even they acknowledge that the term “commerce,” as used in the Federal Arbitration Act, is broadly construed. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 401-02 n. 7, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). And the Second Circuit’s earlier construction in San Carlo has been limited strictly to its facts, if not entirely vitiated in light of Prima Paint. Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1068-69 (2 Cir. 1972). Here, the arbitration provisions are within contracts which, as is clear from the court’s review of the summary judgment motion, evidence extensive commercial dealings between the parties across international boundaries, including, inter alia, the granting of franchises by a New York corporation to foreign corporations, to be exercised in the foreign jurisdiction. That is sufficient to fall within the definition “commerce among the several States or with foreign nations” used in 9 U.S.C. § 1, also the definition of “commerce” for purposes of 9 U.S.C. § 2. Prima Paint Corp. v. Flood & Conklin Mfg. Co., supra. See Bigge Crane & Rigging Co. r. Docutel Corporation, 371 F.Supp. 240, 243 (E.D.N.Y.1973); Batson Yarn and Fabrics Machinery Group, Inc. r. Saurer-Allma GmbH-Allgauer Maschinenbau, 311 F.Supp. 68, 70 (D.S.C.1970). II. The more seriously contested issue here is waiver. Both sides acknowledge that the contractual right to arbitrate can be waived. Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009, 1017 (2 Cir. 1972); Cornell & Company v. Barber" }, { "docid": "23215681", "title": "", "text": "the ground that by the first libel, filed by Tsakalotos Navigation, all three libelants had waived their right to arbitration. Apparently Fertex also argued that libelants had improperly relied on § 8 of the Arbitration Act, which indeed was not here applicable, whereas they should have filed a petition under § 4. Properly seeking to cut through the paper maze created by the rather bumbling efforts of petitioners’ proctors and to place petitioners where they desired and deserved to be, Judge Metzner, on March 2, 1965, dismissed the second libel but granted the motion to direct Fertex to proceed with arbitration as properly made under § 4 of the Federal Arbitration Act. On March 15, 1965, Fertex filed a notice of appeal from Judge Metzner’s order. Some days later it submitted in the District Court an order to show cause why it should not be granted a variety of relief, including reargument on the allegedly new discovery of what it was later to characterize as “the startling fact, previously obscured by procedural movements, that Fertex Steamship Corporation has never agreed to arbitrate any disputes under the charter party, with Chatham Shipping Company, the owner of the ‘General Tsakalotos.’ ” Judge Metzner, pointing out that reargument had not been sought within the ten-day limit provided by General Rule 9(m) of the District Court, denied the motion save insofar as it sought to stay arbitration pending this appeal. Fertex’s points on appeal are wholly devoid of merit. The cases are altogether clear that the mere filing of an action for damages on a contract does not preclude a subsequent change of mind in favor of arbitration therein provided, see Richard Nathan Corp. v. Dacon-Zadeh, 101 F.Supp. 428, 430 (S. D.N.Y.1951); Farr & Co. v. Cia. Intercontinental de Navegacion, 243 F.2d 342, 348 (2 Cir. 1957); the earliest point at which such preclusion may be found is when the other party files an answer on the merits. The Belize, 25 F.Supp. 663, 664 (S.D.N.Y.1938); Cavac Compania Anomina Venezolana de Administracion y Comercio v. Board for Validation, 189 F.Supp. 205, 209 (S.D.N.Y.1960). Judge Metzner" }, { "docid": "16749147", "title": "", "text": "at 481-82, 53 S.Ct. at 449. Although courts and commentators have read the holding in Russell narrowly, see 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3630 & n. 22 (1975), we find it persuasive in the present case. Indeed, the Court in Bouligny characterized the Russell decision as presenting the “[problem] of fitting an exotic creation of the civil law ... into a federal scheme which knew it not.” 382 U.S. at 151, 86 S.Ct. at 275. The present case raises precisely that problem. The parties have cited us no reported decision of any federal court, nor have we found any federal case, discussing whether a Liechtenstein anstalt is a juridical person for purposes of federal diversity jurisdiction. Federal courts applied section 1332(a)(2) to Liechtenstein anstalts in James Wood General Trading Establishment v. Coe, 297 F.2d 651, 652-53 (2d Cir.1961), and Baker v. Gotz, 336 F.Supp. 197, 200 (D.Del.1971), aff'd without opinion, 492 F.2d 1238 (3d Cir.), cert. denied, 417 U.S. 955, 94 S.Ct. 3084, 41 L.Ed.2d 674 (1974), but apparently no one questioned jurisdiction in either case. Indeed, federal courts have had difficulty explicitly characterizing this unique business entity. They have described anstalts as: “corporation[s] ... similar to a one-man corporation,” Kraus v. Commissioner, 59 T.C. 681, 685 (1973); “trust[s],” Ronson Corp. v. Liquifin A.G., 370 F.Supp. 597, 603 (D.N.J.), aff'd, 497 F.2d 394 (3d Cir.), cert. denied, 419 U.S. 870, 85 S.Ct. 129, 42 L.Ed.2d 108 (1974); and “business entitpes] peculiar to Liechtenstein,” United States v. Koenig, 388 F.Supp. 670, 692 (S.D.N.Y.1974). However, we need not resolve the question of which common law entity anstalts most nearly resemble. Section 1332(a)(2) applies to foreign legal entities of all kinds, so long as the entity is considered a juridical person under the law that created it. See, e.g., Fasco, A.G. v. Modernage, Inc., 311 F.Supp. 161, 162 (W.D.Pa.1970) (foreign Aktiengesellschaft creates diversity under 1332(a)(2)); Batson Yarn and Fabrics Machinery Group, Inc. v. Saurer-Allma GmbH-Allgauer Machinebau, 311 F.Supp. 68, 70 (D.S.C.1970) (GmbH creates diversity under 1332(a)(2)). We have no doubt that Liechtenstein regards anstalts as" }, { "docid": "23411428", "title": "", "text": "Sisal Hemp, 75 F. 408, 409 (S.D.Ala.1896), and Gronstadt v. Withoff, 21 F. 253 (S.D.N.Y.1884), both cited with approval in Son Shipping Co. v. De Fosse & Tanghe, 199 F.2d 687, 688-689 (2d Cir. 1952). . See 46 U.S.C. § 1303(6). . See Government of Indonesia v. The General San Martin, 114 F.Supp. 289 (S.D.N.Y.1953). Accord, Reynolds Jamaica Mines, Ltd. v. La Societe Navale Caennaise, 239 F.2d 689, 694 (4th Cir. 1956). . See Government of Indonesia v. The General San Martin, 114 F.Supp. 289, 290 (S.D.N.Y.1953). Cf. J. Aron & Co. v. The Askvin, 267 F.2d 276 (2d Cir. 1959). . The parties might well have intended three months to be the period within which any claim must be asserted and the demandant’s arbitrator appointed, and one year the time within which to commence suit to compel arbitration should the claim be rejected. See also J. Aron & Co. v. The Askvin, 267 F.2d 276 (2d Cir. 1959). . See United Steelworkers v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960) (construction of contract) ; World Brilliance Corp. v. Bethlehem Steel Co., 342 F.2d 362, 364-365 (2d Cir. 1965) (waiver of right to arbitration) ; Compania Maritima San Basilio, S.A. v. Czarnikow-Rionda Co., 236 F.Supp. 427, 428 (S.D.N.Y.1964) (determination of whether contract breach had occurred); International Union of Elec. Workers v. Westinghouse Elec. Corp., 218 F.Supp. 82, 84 (S.D.N.Y. 1963), aff’d on opinion below, 326 F.2d 758 (2d Cir. 1964) (merits of labor grievance) ; Application of Reconstruction Finance Corp., 106 F.Supp. 358, 361-362 (S.D.N.Y.1952), aff’d sub nom. Reconstruction Finance Corp. v. Harrisons & Crosfield, Ltd., 204 F.2d 366, 369-370, 37 A.L.R.2d 1117 (2d Cir.), cert. denied, 346 U.S. 854, 74 S.Ct. 69, 98 L.Ed. 368 (1953) (limitations and laches). Cf. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) (construction of contract); South East Atlantic Shipping Ltd. v. Garnac Grain Co., 356 F.2d 189 (2d Cir. 1966) (fact findings, construction of contract, and interpretation of contract law); Marcy Lee Mfg. Co. v." }, { "docid": "23215682", "title": "", "text": "Steamship Corporation has never agreed to arbitrate any disputes under the charter party, with Chatham Shipping Company, the owner of the ‘General Tsakalotos.’ ” Judge Metzner, pointing out that reargument had not been sought within the ten-day limit provided by General Rule 9(m) of the District Court, denied the motion save insofar as it sought to stay arbitration pending this appeal. Fertex’s points on appeal are wholly devoid of merit. The cases are altogether clear that the mere filing of an action for damages on a contract does not preclude a subsequent change of mind in favor of arbitration therein provided, see Richard Nathan Corp. v. Dacon-Zadeh, 101 F.Supp. 428, 430 (S. D.N.Y.1951); Farr & Co. v. Cia. Intercontinental de Navegacion, 243 F.2d 342, 348 (2 Cir. 1957); the earliest point at which such preclusion may be found is when the other party files an answer on the merits. The Belize, 25 F.Supp. 663, 664 (S.D.N.Y.1938); Cavac Compania Anomina Venezolana de Administracion y Comercio v. Board for Validation, 189 F.Supp. 205, 209 (S.D.N.Y.1960). Judge Metzner was quite warranted in rejecting as untimely Fertex’s belated claim concerning the substitution of a vessel owned by Chatham. It was baseless in any event. Even if the bare words “owners’ option substitute” are not enough to overcome the general principle that a voyage charter must be performed by the shipowner identified in the charter party, see Fratelli Sorrentino v. Buerger, [1915] 3 K.B. 367; Scrutton, Charterparties and Bills of Lading, at 3, n. 2 (17th ed. 1964), a point we find it unnecessary to decide, Fertex waived any right to object to the substitution by accepting performance by the General Tsakalotos, see Denton v. Brocksmith, 299 F. 559 (5 Cir. 1924); 3 Williston, Contracts § 418, at 102 (3d ed. 1960). And if we accept Fertex’s contention that a novation did not occur, the substitution and acceptance of Chatham’s vessel amounted at least to an assignment of Warwick’s rights to performance by Fertex. Chatham was thereby entitled to enforce the arbitration provision in the charter, since it is established that, absent contrary expression, assignment" }, { "docid": "4197520", "title": "", "text": "Orleans General Agency, Inc., 427 F.2d 924 (5 Cir. 1970); Hilti, Inc. v. Oldach, 392 F.2d 368 (1 Cir. 1968); Reynolds Jamaica Mines v. La Societe Navale Caennaise, 239 F.2d 689, 692-93 (4 Cir. 1956); Macchiavelli v. Shearson, Hammill & Co., Incorporated, 384 F.Supp. 21, 26 (E.D.Cal.1974); Bigge Crane & Rigging Co. v. Docutel Corporation, supra, 371 F.Supp. at 244; Milton Schwartz & Associates, Architects v. Magness Corporation, 368 F.Supp. 749 (D.Del.1974); Batson Yarn and Fabrics Machinery Group, Inc. v. Saurer-Allma GmbH-Allgauer Maschinenbau, supra, 311 F.Supp. at 72-74; G. B. Michael v. SS Thanasis, 311 F.Supp. 170, 181-82 (N. D.Cal.1970); Commercial Metals Company v. International Union Marine Corporation, 294 F.Supp. 570, 573-74 (S.D.N.Y.1968); Mason v. Stevensville Golf and Country Club, Inc., 292 F.Supp. 348 (S.D.N.Y.1968); Lumbermens Mutual Casualty Company v. Borden Company, 268 F.Supp. 303, 311-13 (S.D.N.Y.1967); Necchi Sewing Machine Sales Corp. v. Carl, 260 F.Supp. 665, 667-69 (S.D.N.Y.1966); In re Tsakalotos Navigation Corp., supra, 259 F.Supp. at 212-14; Rootes Motors, Inc. v. Steamship Carina, 1964 A.M.C. 2754 (S.D.N.Y.); Cavac Compania Anonima Venezolana de Administracion y Comercio v. Board for Validation of German Bonds in United States, 189 F.Supp. 205, 208-10 (S.D.N.Y.1960); McElwee-Courbis Construction Co. v. Rife, 133 F.Supp. 790, 795 (M.D.Pa.1955); Harris Hub Bed & Spring Co. v. United Electrical, Radio & Machine Workers of America (U.E.), 121 F.Supp. 40, 42 (M.D.Pa.1954); Richard Nathan Corp. v. Diacon-Zadeh, 101 F.Supp. 428 (S.D.N.Y.1951). . Def. Reply Memo, at 3. . ITT World Communications, Inc. v. Communications Workers of America, AFL-CIO, supra, cited by defendant, is not on “all fours” with this case. There an answer had been filed and only a four-month delay ensued in seeking arbitration, during which plaintiff moved for summary judgment and defendant moved for a stay pending arbitration. The court found no waiver, as plaintiff “made no showing of prejudice resulting from the delay.” Id. at 83. Here, there is prejudice, a much longer delay, and unlike ITT, the party seeking summary judgment and arbitration are one and the same. A review of the other cases cited by defendant, included in n. 5 supra, reveals them all" }, { "docid": "4197521", "title": "", "text": "y Comercio v. Board for Validation of German Bonds in United States, 189 F.Supp. 205, 208-10 (S.D.N.Y.1960); McElwee-Courbis Construction Co. v. Rife, 133 F.Supp. 790, 795 (M.D.Pa.1955); Harris Hub Bed & Spring Co. v. United Electrical, Radio & Machine Workers of America (U.E.), 121 F.Supp. 40, 42 (M.D.Pa.1954); Richard Nathan Corp. v. Diacon-Zadeh, 101 F.Supp. 428 (S.D.N.Y.1951). . Def. Reply Memo, at 3. . ITT World Communications, Inc. v. Communications Workers of America, AFL-CIO, supra, cited by defendant, is not on “all fours” with this case. There an answer had been filed and only a four-month delay ensued in seeking arbitration, during which plaintiff moved for summary judgment and defendant moved for a stay pending arbitration. The court found no waiver, as plaintiff “made no showing of prejudice resulting from the delay.” Id. at 83. Here, there is prejudice, a much longer delay, and unlike ITT, the party seeking summary judgment and arbitration are one and the same. A review of the other cases cited by defendant, included in n. 5 supra, reveals them all to be inapposite for similar reasons. . The general statement in Chatham, Shipping Company v. Fertex Steamship Corporation, 352 F.2d 291, 293 (2 Cir. 1965), to the effect that the earliest point defendant’s waiver may be found is when it files an answer on the merits, does not alter this conclusion. That rule does not allow defendant to assert, for the first time in response to an amended complaint raising no new claims, a demand not raised in the original answer and otherwise totally at odds with its actions in the lawsuit. The court also finds distinguishable Matter of Haupt v. Rose, 265 N.Y. 108, 191 N.E. 853 (1934), cited by defendant. Aside from the fact that federal law controls the waiver issue, see Coenen v. R. W. Pressprich & Co., 453 F.2d 1209, 1211 (2 Cir.), cert. denied, 406 U.S. 949, 92 S.Ct. 2045, 32 L.Ed.2d 337 (1972), in Haupt defendant’s arbitration demand was made within three months of the filing of the complaint, after defendant’s motion to dismiss was denied, but either before" }, { "docid": "22934042", "title": "", "text": "U. S. Industries, Inc. v. Norton Co., 174 USPQ 514 (N.D.N.Y.1972), and Honeywell, Inc. v. Piper Aircraft Corp., 50 F.R.D. 117 (M.D.Pa.1970), both district judges stated, in dicta, that the plaintiffs may have waived the claims of privilege which they asserted by instituting the suits and putting the validity of the patents and their infringement in issue. Nevertheless, neither court resolved the question. IV. The Corporate Client A. The Control Group The attorney-client privilege does extend to corporations. Radiant Burners, Inc. v. American Gas Association, 320 F.2d 314 (7th Cir. 1963). When a corporation seeks to invoke the attorney-client privilege, the communications generally must have been between counsel and the corporation’s “control group.” When determining what officers and employees of the company asserting a privilege are members of this group, the test is whether the person had the authority to control or substantially participate in a decision regarding action to be taken on advice of counsel, or was a bona fide member of a group that had this power. Philadelphia v. Westinghouse Electric Corp., 210 F.Supp. 483 (E.D.Pa.1962); Garrison v. General Motors Corp., 213 F.Supp. 515 (S.D.Cal.1963); Ortiz v. H. L. H. Products Co., 39 F.R.D. 41 (D.Del.1965); Leve v. General Motors Corp., 43 F.R.D. 508 (S.D.N.Y.1967); Congoleum Industries Inc. v. G. A. F. Corp., 49 F.R.D. 82 (E.D.Pa.1969); Rucker v. Wabash R. Co., 418 F.2d 146 (7th Cir. 1969); Honeywell Inc. v. Piper Aircraft Corp., supra; Cf. Harper and Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970), aff’d, 400 U.S. 348, 91 S.Ct. 479, 27 L.Ed.2d 433 (1971). B. House Counsel The attorney-client privilege applies to confidential communications between members of the corporate control group and its attorneys acting in a legal capacity. “House” lawyers, acting as legal advisors, are within the purview of the attorney-client privilege under the same circumstances as “outside” counsel. Natta v. Hogan, 392 F.2d 686 (10th Cir. 1968); American Optical Corporation v. Medtronic, Inc., 56 F.R.D. 426 (D.Mass.1972); Air-Shield, Inc. v. Air Reduction Company, 46 F.R.D. 96 (N.D.Ill.1968); United States v. United Shoe Machinery Corp., supra. Exxon contends that, for purposes" } ]

[ { "docid": "5680702", "title": "", "text": "review the district court’s grant of qualified immunity on summary judgment de novo. Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1026 (10th Cir. 1994). “ ‘Under the summary judgment standard, we review the evidence in the light most favorable to the nonmoving party.’” Romero, 45 F.3d at 1475 (quoting Bisbee v. Bey, 39 F.3d 1096, 1100 (10th Cir.1994), cert. denied, 515 U.S. 1142, 115 S.Ct. 2577, 132 L.Ed.2d 827 (1995)). “However, ‘[w]e review summary judgment decisions involving a qualified immunity defense somewhat differently than other summary judgment rulings.’ ” Id. (quoting Hannula v. City of Lakewood, 907 F.2d 129, 130 (10th Cir.1990)). This difference arises from the unique nature of qualified immunity, which is designed to protect public officials from spending inordinate time and money defending erroneous suits at trial. See Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.1995). Qualified immunity is more than a defense to liability — it acts as an immunity to suit, therefore, “the Supreme Court has repeatedly ‘stressed the importance of resolving immunity questions at the earliest possible stage in litigation.’ ” Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 5.Ct. 534, 116 L.Ed.2d 589 (1991)). When a defendant raises the qualified immunity defense on summary judgment, the burden shifts to the plaintiff to meet a strict two-part test. “First, the plaintiff must demonstrate that the defendant’s actions violated a constitutional or statutory right. Second, the plaintiff must show that the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue.” Id. at 1534-35 (citations omitted). If, and only if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant for summary judgment — showing “that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.” Id. at 1535 (quotation marks and citation omitted). DISCUSSION The district court did not reach the traditional summary judgment analysis because it found Ms. Nelson failed to meet the first prong of the qualified immunity test:" } ]

[ { "docid": "17453716", "title": "", "text": "of equal protection and procedural due process. The district court, inter alia, denied Hasford’s motion for summary judgment based on a defense of qualified immunity from the Wildgrubes’ First Amendment claim, Fourth Amendment claim, and Fourteenth Amendment equal protection claim. Mimics, Inc. v. Village of Angel Fire, 277 F.Supp.2d 1131, 1150, 1153, 1157 (D.N.M.2003). It is that order which is the subject of this appeal. III. DISCUSSION “Orders denying qualified immunity before trial are appealable to the extent they resolve abstract issues of law.” Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997). When, as here, “a defendant’s appeal of the denial of a motion for summary judgment is based on the argument that, even under the plaintiffs version of the facts, the defendant did not violate clearly established law, then the district court’s summary judgment ruling is immediately appealable.” Johnson v. Martin, 195 F.3d 1208, 1214 (10th Cir.1999). A denial of qualified immunity on summary judgment is reviewed de novo, viewing the evidence in the light most favorable to the nonmoving party. Verdecia v. Adams, 327 F.3d 1171, 1174 (10th Cir.2003). To prevail on summary judgment against a defendant who asserts a defense of qualified immunity, a “plaintiff must show that (1) the official violated a constitutional or statutory right; and (2) the constitutional or statutory right was clearly established when the alleged violation occurred.” Id. The court must first determine if a constitutional right was violated because “[i]n the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Requiring the law to be clearly established provides defendants with “fair warning” that their conduct is unconstitutional. Hope v. Pelzer, 536 U.S. 730, 739-40, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). “The law is clearly established when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other" }, { "docid": "1568283", "title": "", "text": "prisoner supervision by the Department of Corrections, we draw the reasonable inference, as we are permitted to do, Verdecia v. Adams, 327 F.3d 1171, 1174 (10th Cir.2003), that Cochran had responsibility for administering the conditions of Smith’s custody while she worked at the Northside center. We conclude that the contract between the Department of Corrections and the DPS delegated to the DPS one of its core penological functions: supervising Smith’s compliance with Department of Corrections disciplinary policies during extended periods of her custody. Cochran, as an employee of DPS who acted as a supervisor over Smith, exercised the authority delegated by the Department of Corrections. Because Cochran wielded authority over Smith that was delegated by the state prison authority in the state’s exercise of its penological functions, we hold that the use of excessive force by him can constitute a violation of the Eighth Amendment, and that Smith has met her burden under our standard of review for summary judgment orders deciding qualified immunity claims of showing that Cochran violated her constitutional right. II. Whether the Eighth Amendment Right Was Clearly Established We next turn to the issue whether Smith has met her burden of showing that the violation of her Eighth Amendment right was clearly established. Harrington, 268 F.3d at 1186. “In showing that the law was clearly established, the plaintiff does not have to show that the specific action at issue had been held unlawful, but that the alleged unlawfulness of the defendant’s conduct must be apparent in light of preexisting law.” Armijo v. Wagon Mound Public Schools, 159 F.3d 1253, 1260 (10th Cir.1998). In other words, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. A plaintiff may meet the burden of making this showing by pointing to “a Supreme Court or Tenth Circuit opinion on point, or that his or her proposition is supported by the weight of authority from other courts. However, we do not require plaintiffs to produce a factually identical case, but allow some degree of generality in" }, { "docid": "18699082", "title": "", "text": "to the same extent as statements in a sworn affidavit. See Williams, 935 F.2d at 961. Munz alleged in his verified complaint that he was bound hand and foot and sitting peacefully in the defendants’ squad car when he was (1) grabbed and slammed against a brick wall, (2) threatened with a violent beating, (3) thrown violently to the floor of a padded cell, (4) kicked and jumped on by jailers and marshals, and (5) grabbed by the hair and had his face slammed against the floor. The first and third Whitley factors arguably weigh in favor of defendants because there was an objectively reasonable need for the defendants to apply some force and Munz may not have suffered severe injuries. However, Whitley factor two — the relationship between the force required and the force applied — supports the district court’s denial of summary judgment. Munz alleges that, while he was chained, the defendants made statements indicating that they were going to beat him once they got him into the padded cell. Munz also alleges that, once in the padded cell, the defendants beat him violently. A jury reasonably could find that defendants’ application of force was not a good-faith effort to maintain or restore discipline; rather, a jury could find that such force was applied maliciously and sadistically for the very purpose of causing harm. See Hudson, — U.S. at -, 112 S.Ct. at 999; Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1085. Thus, we conclude that the district court properly denied defendants’ summary judgment motion on the merits. B. Qualified Immunity Defendants argue that the district court improperly denied their defense of qualified immunity. In particular, defendants argue that under the four-part test set out in Wyatt v. Delaney, 818 F.2d 21, 23 (8th Cir.1987), Munz has failed to demonstrate that defendants violated Munz’s clearly established Eighth Amendment rights. Defendants’ Br. at 29. We disagree. “Government officials performing discretionary functions are shielded from liability for civil damages by qualified immunity as long as their ‘conduct does not violate clearly established [federal] statutory or constitutional rights of which" }, { "docid": "23392431", "title": "", "text": "should ordinarily be decided at the earliest possible stage in litigation, and it is a defense that often can and should be decided on a motion for summary judgment, some limited and carefully tailored discovery may be needed before summary judgment will be appropriate.” (internal citations and quotation marks omitted)); Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.1990) (“The better rule, we believe, is for the court to decide the issue of qualified immunity as a matter of law, preferably on a pretrial motion for summary judgment when possible....”). Because we hold that Walker’s complaint plausibly alleged conditions of confinement that could constitute cruel and unusual punishment, and that defendants acted (or failed to act) with deliberate indifference, further facts are required to decide the question of qualified immunity. In light of the specific allegations here, it would be inappropriate to conclude as a matter of law at the pleadings stage of the litigation that defendants did not violate Walker’s clearly established constitutional rights. CONCLUSION For the reasons stated above, the judgment of the district court is affirmed as to defendants Norwood and Lappin, and vacated as to defendants Schult, Perdue, Salamy, Sepanek, Porter, Carter, and Wagner. The case is remanded to the district court for further proceedings consistent with this opinion. . In Walker’s opposition to defendants’ motion to dismiss, he further alleged: The ventilation in the six man [cell] was the same as it was when the six man cell was a two man cell. The ventilation was so bad in the summer months [that] Schult[ ] would send out memo[]s to the units to have the food slot[] door[s] open so air could flow through the cells. In the winter the cell windows have ice two to four inch[e]s thick on the inside of the six man cell. Plaintiff had to make his bunk short because if not my feet would freeze from the ice that came out of the window frame and the bunk was maybe six inch[e]s from the windows. The cell stayed cold and everybody in the six man cell would go to" }, { "docid": "7214809", "title": "", "text": "a “final decision” under 28 U.S.C. § 1291. Patrick v. Miller, 953 F.2d 1240, 1243 (10th Cir.1992). We review district court orders denying qualified immunity on summary judgment de novo. Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir.1995). In our review of summary judgment rulings, the evidence in the record and inferences drawn therefrom, are viewed in the light most favorable to the nonmoving party. Id. However, we treat summary judgment rulings involving a qualified immunity defense somewhat differently than other summary judgment rulings. Id. Our review of the district court’s ruling denying qualified immunity on summary judgment consists of two inquiries directed toward the plaintiff. Once the defendant pleads qualified immunity, the burden shifts to the plaintiff to demonstrate (1) the defendant’s conduct violated the law, and (2) the relevant law was clearly established when the alleged violation occurred. Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir.1997). “If the plaintiff fails to carry either part of his two-part burden, the defendant is entitled to qualified immunity.” Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir.1995). To show a right is clearly established, Ms. Mig-neault must cite to Supreme Court or Tenth Circuit decisions on point, or to weight of authority from other courts defining the contours of the right. Foote v. Spiegel, 118 F.3d 1416, 1424 (10th Cir.1997). “The contours of the right [the official is alleged to have violated] must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Dr. Henney argues Ms. Migneault failed her burden of identifying a clearly established right. Specifically, Dr. Henney claims Ms. Migneault failed to show the law is clearly established that a claim for age discrimination in employment is cognizable under the Equal Protection Clause, independent of the ADEA. We agree. Neither the Supreme Court nor this court have squarely addressed whether an Equal Protection claim exists independent of an ADEA claim. Other courts have addressed the issue, however, and in doing so, have refused to recognize" }, { "docid": "5528122", "title": "", "text": "citation constitutes a promise to appear at the time and place stated in the citation. Although Mr. Martinez disputed the factual allegations recited in the citation, he signed the document and was escorted off the fairground by officers other than Officer Carr. On August 10, 2004, Mr. Martinez filed a complaint against Officer Carr in New Mexico state court asserting wrongful arrest and false imprisonment, malicious use of process, and the violation of his Fourth Amendment right against being seized unreasonably. The case was later removed to the United States District Court for the District of New Mexico where the first two counts were dismissed by a stipulated order, leaving only the Fourth Amendment claim. On June 27, 2005, Officer Carr moved for summary judgment on several grounds, including qualified immunity. The district court denied this relief, concluding as a matter of law that, on the facts alleged, Officer Carr seized Mr. Martinez when he handed Mr. Martinez the citation and told him he had the choice to sign the citation or go to jail. The district court further found this seizure to be unlawful and ruled that Officer Carr was not entitled to qualified immunity from suit because his conduct violated a “clearly established” constitutional right under existing law. It is this determination that Officer Carr appeals to us. II A district court’s denial of a defendant’s summary judgment motion based on qualified immunity is an immediately ap-pealable collateral order when, as here, the matter at issue concerns whether the alleged facts demonstrate a violation of clearly established law. Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir.2001) (citing Mitchell v. Forsyth, 472 U.S. 511, 527-28, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). We review de novo denials of summary judgment involving qualified immunity but, when a defendant raises qualified immunity as a defense, the plaintiff must meet a “heavy two-part burden.” Albright v. Rodriguez, 51 F.3d 1531, 1534-35 (10th Cir.1995). First, the plaintiff must demonstrate that the defendant violated one of his or her constitutional or statutory rights. Second, the plaintiff must show that the infringed right at" }, { "docid": "22975902", "title": "", "text": "may amount to a deliberate indifference to a serious medical need. II. This court reviews the legal issues surrounding the grant of summary judgment based on qualified immunity de novo, considering all evidence in the light most favorable to the nonmoving parties under Rule 56(c), Federal Rules of Civil Procedure. DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir.2001). Summary judgment is ultimately 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.” Oliver v. Woods, 209 F.3d 1179, 1184 (10th Cir.2000). This court, however, “review[s] summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions” because of the purposes behind qualified im munity. Holland v. Harrington, 268 F.3d 1179, 1185 (10th Cir.2001). When a § 1983 defendant raises the defense of qualified immunity on summary judgment, the burden shifts to the plaintiff to show that 1) the official violated a constitutional or statutory right; and 2) the constitutional or statutory right was clearly established when the alleged violation occurred. Farmer v. Perrill, 288 F.3d 1254, 1259 (10th Cir.2002). First, “[tjaken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If so, we must subsequently ask “whether the right was clearly established.” Id. If the plaintiff does not satisfy either portion of the two-pronged test, the Court must grant the defendant qualified immunity. Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir.2001). If the plaintiff indeed demonstrates that the official violated a clearly established constitutional or statutory right, then the burden shifts back to the defendant, who must prove that “no genuine issues of material fact” exist and that the defendant “is entitled to judgment as a matter of law.” Id. In the end, therefore, the defendant still bears the normal summary judgment burden of showing that no material facts remain in dispute that would defeat the qualified immunity defense. Farmer, 288 F.3d" }, { "docid": "22975903", "title": "", "text": "the alleged violation occurred. Farmer v. Perrill, 288 F.3d 1254, 1259 (10th Cir.2002). First, “[tjaken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If so, we must subsequently ask “whether the right was clearly established.” Id. If the plaintiff does not satisfy either portion of the two-pronged test, the Court must grant the defendant qualified immunity. Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir.2001). If the plaintiff indeed demonstrates that the official violated a clearly established constitutional or statutory right, then the burden shifts back to the defendant, who must prove that “no genuine issues of material fact” exist and that the defendant “is entitled to judgment as a matter of law.” Id. In the end, therefore, the defendant still bears the normal summary judgment burden of showing that no material facts remain in dispute that would defeat the qualified immunity defense. Farmer, 288 F.3d at 1259. When the record shows an unresolved dispute of historical fact relevant to this immunity analysis, a motion for summary judgment based on qualified immunity should be “properly denied.” Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir.1991) (applying the qualified immunity analysis in the context of a closely related Bivens action, in which material facts relating to the violation of a constitutional right were in dispute at the summary judgment stage). III. A. A police officer violates an arrestee’s clearly established Fourth Amendment right to be free of unreasonable seizure if the officer makes a warrantless arrest without probable cause. Tenn. v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). In the context of a warrantless arrest in a § 1983 action, this court must grant a police officer qualified immunity “if a reasonable officer could have believed that probable cause existed to arrest the plaintiff.” Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.1995). “Probable cause exists if facts and circumstances within the arresting officer’s knowledge and of" }, { "docid": "6973223", "title": "", "text": "facilitates the dismissal of factually unsupported claims prior to trial. The doctrine of qualified immunity accomplishes a similar purpose by shielding public officials from civil liability when 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, 2738, 73 L.Ed.2d 396 (1982). Thus, in this case, for Bennett to defeat Jackson and Cooper’s motions for summary judgment, he must show that their conduct violated clearly established statutory or constitutional rights. See Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.1989) (burden of proving constitutional violation on plaintiff). Because we hold that Bennett failed to establish a constitutional violation, rendering immaterial any facts still in dispute, we have jurisdiction. B. Denial of Summary Judgment On review of the denial of summary judgment based on qualified immunity, to determine whether a plaintiff has sufficiently established a constitutional violation, we follow the standard for a directed verdict under Federal Rule of Civil Procedure 50(a). Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. If the facts taken in the light most favorable to the plaintiff do not establish a constitutional violation, then the public official should be granted summary judgment as a matter of law. Brown v. Smith, 813 F.2d 1187, 1188 (11th Cir.1987). Our review of the denial of summary judgment based on qualified immunity is plenary. Waldrop v. Evans, 871 F.2d at 1032 n. 1. Bennett contends that Jackson and Cooper violated his constitutional rights through the use of excessive force. The eighth amendment prohibition against cruel and unusual punishment is triggered when a prisoner is subjected to a “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (citations omitted). The Court found in Albers that the determination of whether a prisoner has suffered unnecessary and wanton pain turns on “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” 475 U.S. at 320-21, 106" }, { "docid": "3587624", "title": "", "text": "shock the conscience only if they involved force employed maliciously and sadistically for the very purpose of causing harm rather than in a good faith effort to maintain or restore discipline. B. Qualified immunity Also at play in this case is the doctrine of qualified immunity. “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.” Stanton v. Sims, — U.S. -, 134 S.Ct. 3, 4, 187 L.Ed.2d 341 (2013) (internal quotation marks omitted). “Once raised, it is the plaintiffs burden to show that the defendants are not entitled to qualified immunity.” Burgess, 735 F.3d at 472. In the Sixth Circuit we have generally “use[d] a two-step analysis: (1) viewing the facts in the light most favorable to the plaintiff, we determine whether the allegations give rise to a constitutional violation; and (2) we assess whether the right was clearly established at the time of the incident.” Id. Because we resolve the present case by affirming the determination that no constitutional violation- occurred, we need not address whether the alleged right was clearly established. See id. (“We can consider these steps in any order.”). IV. CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS A. The Cell Incident The video recording in this case provides sufficient evidence for a jury to find that the situation in the cell afforded the deputies “a reasonable opportunity to deliberate various alternatives prior to electing a course of action.” Darrah, 255 F.3d at 306 (internal quotation marks omitted). Reed was warned multiple times that he was “going to get Tased” if he did not cooperate and that it would hurt. The deputies also tried to wrestle him to the ground to cuff him several times before the first use of the Taser. After each attempt, they backed away. And, at one point, a deputy volunteered to “get his cuff’ and other deputies assisted him. These are the kinds of statements that would permit a jury to infer that the deputies had an opportunity to" }, { "docid": "18699083", "title": "", "text": "that, once in the padded cell, the defendants beat him violently. A jury reasonably could find that defendants’ application of force was not a good-faith effort to maintain or restore discipline; rather, a jury could find that such force was applied maliciously and sadistically for the very purpose of causing harm. See Hudson, — U.S. at -, 112 S.Ct. at 999; Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1085. Thus, we conclude that the district court properly denied defendants’ summary judgment motion on the merits. B. Qualified Immunity Defendants argue that the district court improperly denied their defense of qualified immunity. In particular, defendants argue that under the four-part test set out in Wyatt v. Delaney, 818 F.2d 21, 23 (8th Cir.1987), Munz has failed to demonstrate that defendants violated Munz’s clearly established Eighth Amendment rights. Defendants’ Br. at 29. We disagree. “Government officials performing discretionary functions are shielded from liability for civil damages by qualified immunity as long as their ‘conduct does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.’ ” Cole, 993 F.2d at 1332 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). “[T]o decide whether an official is protected by qualified immunity, a court must determine whether the official’s action was objectively legally reasonable in the light of the legal rules that were clearly established at the time the action occurred.” Id. The qualified immunity inquiry involves a two-step process. First, this court must determine whether the plaintiff has alleged a violation of a constitutional right. Beck v. Schwartz, 992 F.2d 870, 871 (8th Cir.1993) (per curiam) (citing Seigert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991)). Second, this court must determine whether that constitutional right was clearly established at the time that the officials acted. Cole, 993 F.2d at 1332. “This court has ... taken a broad view of what constitutes ‘clearly established law’ for the purposes of a qualified immunity inquiry....” Boswell v. Sherburne County, 849 F.2d 1117, 1121 (8th Cir.1988), cert." }, { "docid": "2518662", "title": "", "text": "of her case with respect to which she has the burden of proof.” Id. at 322, 106 S.Ct. 2548. DISCUSSION I. Qualifíed Immunity Motion Defendant Hasford seeks summary judgment on grounds of qualified immunity. Qualified immunity is an affirmative defense to actions brought under 42 U.S.C. § 1983 and shields public officials from “trial or ... other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). In other words, the doctrine provides “immunity from suit rather than a mere defense to liability.” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Unlike the typical summary judgment analysis, once a defendant raises a qualified immunity defense, the burden shifts to the plaintiff, who must demonstrate first that the defendant’s acts violated a constitutional or statutory right and second that the constitutional or statutory right at issue was clearly established at the time of defendant’s conduct. Verdecia v. Adams, 327 F.3d 1171, 1174 (10th Cir.2003). The Court must conduct this two-pronged analysis in precisely this sequence. Saucier, 533 U.S. at 200, 121 S.Ct. 2151. If the plaintiff cannot make either of these showings, the Court must grant defendant’s motion for summary judgment. Id. However, if plaintiff satisfies this two-prong test, “defendant then bear[s] the traditional burden of the mov-ant for summary judgment — showing that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.” Nelson v. McMullen, 207 F.3d 1202, 1206 (10th Cir.2000) (quotations and citation omitted). Accordingly, the Court first must inquire whether Plaintiffs’ allegations, read in the light most favorable to them, establish that Defendant Hasford’s actions violated a constitutional or statutory right. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. Only if the Plaintiffs meet this requirement will the Court examine whether the constitutional or statutory rights were “clearly established” when Hasford’s actions took place. For a constitutional right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." }, { "docid": "8520211", "title": "", "text": "102 S.Ct. 2727. On appeal, we review the award of summary judgment based on qualified immunity de novo, considering all evidence in the light most favorable to the non-moving party. DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir.2001). Summary judgment is appropriate if the record shows “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). “To prevail on summary judgment against a defendant who asserts a defense of qualified immunity, a plaintiff must show that (1) the official violated a constitutional or statutory right; and (2) the constitutional or statutory right was clearly established when the alleged violation occurred.” Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 841 (10th Cir.2005) (internal quotation marks omitted).We first determine “whether plaintiffs allegations, if true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). As to the second element, “law is clearly established when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right must be as plaintiff maintains.” Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir.2003). If the plaintiff satisfies the two-part test, “the defendant bears the usual burden of a party moving for summary judgment to show that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.” Axson-Flynn v. Johnson, 356 F.3d 1277, 1299 (10th Cir.2004). Ms. Bliss and Mr. Trask maintain that the probation officers violated their Fourth Amendment protection against unreasonable searches when the officers conducted a field inspection of their residence more than one month after Ms. Bliss’s probation had been discharged. They claim that their Fourth Amendment right to be free from a warrantless entry was clearly established at the time of the June 2001 search. See Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). The probation officers respond" }, { "docid": "22075292", "title": "", "text": "v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). It shields government officials performing discretionary functions from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. In this way, it protects government officials from liability for good faith misjudgments and mistakes. See Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Although a defendant’s subjective intent is usually not relevant to the qualified immunity defense, his mental state is relevant when, as here, it is an element of the alleged constitutional violation. See Jeffers v. Gomez, 267 F.3d 895, 911 (9th Cir.2001). Resolving the issue of qualified immunity involves a two-step inquiry. First, we must ask whether “[tjaken in the light most favorable to the party asserting the injury, ... the facts alleged show the officer’s conduct violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). A negative answer ends the analysis, with qualified immunity protecting the defendants from liability. Id. If a constitutional violation occurred, a court must further inquire “whether the right was clearly established.” Id. “If the law did not put the [officials] on notice that [their] conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. I. Excessive Force Our excessive force analysis begins with identification of the specific constitutional right allegedly infringed by the officers’ use of force. Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). When prison officials use excessive force against prisoners, they violate the inmates’ Eighth Amendment right to be free from cruel and unusual punishment. Force does not amount to a constitutional violation in this respect if it is applied in a good faith effort to restore discipline and order and not “maliciously and sadistically for the very purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). This standard necessarily involves a more culpable" }, { "docid": "6703556", "title": "", "text": "positions would have known.” Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1251 (10th Cir.1999). As a result, “qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset.” Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir.1995). “When the defense of qualified immunity is raised in a summary judgment motion, we apply special rules to determine whether the motion was properly granted or denied.” Pino v. Higgs, 75 F.3d 1461, 1467 (10th Cir.1996). Specifically, “[t]he plaintiff initially bears a heavy two-part burden [and] must show (1) that the defendant’s actions violated a constitutional ... right, and (2) that the right allegedly violated [was] clearly established at the time of the conduct at issue. Unless the plaintiff carries its twofold burden, the defendant prevails.” Mick v. Brewer, 76 F.3d 1127, 1134 (10th Cir.1996) (quotations and citation omitted). Thus, our “first inquiry must be whether a constitutional right would have been violated on the facts alleged.... If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); see also Maestas v. Lujan, 351 F.3d 1001, 1007 (10th Cir.2003) (“Order is important; we must decide first whether the plaintiff has alleged a constitutional violation, and only then do we proceed to determine whether the law was clearly established.”). As a threshold matter, plaintiff must therefore demonstrate that he has presented sufficient facts to show that defendants’ conduct violated his Eighth Amendment rights. See DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir.2001). Plaintiff does not have to rebut defendants’ factual allegations, however, because we view all of the evidence in the record in the light most favorable to plaintiff. Id. We also review the legal issues surrounding the grant of qualified immunity de novo. Id. Having conducted the required reviews of the evidence and the legal issues in this case, we conclude that plaintiff has put forth insufficient evidence to support his Eighth Amendment claim. “To prevail on a" }, { "docid": "17774482", "title": "", "text": "summary judgment de novo.” Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir.1995). When a defendant asserts the affirmative defense of qualified immunity, “the plaintiff initially bears a heavy two-part burden.” Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.1995). The plaintiff must show (1) “that the defendant’s actions violated a constitutional or statutory right” and (2) that the right “allegedly violated [was] clearly established at the time of the conduct at issue.” Id. “‘[P]laintiff must articulate the clearly established constitutional right and the defendant’s conduct which violated the right with specificity.’ ” Id. (quoting Romero, 45 F.3d at 1475). “If the plaintiff fails to carry either part of his two-part burden, the defendant is entitled to qualified immunity.” Id. at 1535. If the plaintiff has made the required two-part showing, “ 'then the defendant bears the burden, as a movant for summary judgment, of showing no material issues of fact remain that would defeat the claim of qualified immunity.’ ” Romero, 45 F.3d at 1475 (quoting Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir.1994)). We hold that plaintiffs failed to show that DeFabbo violated a clearly established constitutional right and that DeFabbo, therefore, is entitled to qualified immunity. We view the evidence in the light most favorable to the nonmoving party. Id. Because plaintiffs did not present any evidence to the contrary, we assume from De-Fabbo’s evidence that Romero punched De-Fabbo and ran a knife across his stomach, that DeFabbo retreated and drew his gun, that despite warnings to drop the knife, Romero approached DeFabbo with the knife, and that DeFabbo then shot Romero in self-defense. Plaintiffs’ excessive force claim must be analyzed under the reasonableness standard of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989). An officer’s use of deadly force in self-defense is not constitutionally unreasonable. See Garner, 471 U.S. at 11, 105 S.Ct. at 1701 (deadly force may be used if “officer has probable cause to believe that the suspect poses a threat of serious physical harm either to the officer or to others”)." }, { "docid": "8114998", "title": "", "text": "Amendment provides to convicted prisoners. Owens v. Scott Cnty. Jail, 328 F.3d 1026, 1027 (8th Cir.2003). Therefore, if the use of force in this case would have violated the Eighth Amendment had the plaintiffs been prisoners, that conduct necessarily violated the plaintiffs’ rights under the Fourteenth Amendment. The facts that the district court found to be supported by the record for the purpose of summary judgment would support a claim of excessive force in violation of the Eighth Amendment. “When confronted with a claim of excessive force alleging a violation of the Eighth Amendment, the core judicial inquiry is ‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’ ” Santiago v. Blair, 707 F.3d 984, 990 (8th Cir.2013) (quoting Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). The district court found for the purpose of summary judgment that, immediately before the guards entered Pod B, the plaintiffs were lying submissively, face-down, in the pod. The guards could see this through the window in the pod door. The plaintiffs did not resist or otherwise act aggressively. Nevertheless, the guards employed a flash-bang grenade in close quarters, kicked the compliant detainees, and shot them with bean-bag guns. These facts, if proved, could show that the guards did not apply this force in order to restore order or discipline but rather for the sole — and impermissible — purpose of inflicting unjustified harm on the detainees. At the time of the incident, it was clearly established that such conduct would violate the Eighth Amendment’s proscription of cruel and unusual punishment. United States v. Miller, 477 F.3d 644, 647-48 (8th Cir.2007) (holding that kicking and stomping on inmate “without just cause or reason” would violate Eighth Amendment); Thompson v. Zimmerman, 350 F.3d 734, 735 (8th Cir. 2003) (reversing grant of summary judgment based on qualified immunity where guards beat prisoner who was not resisting or causing a disturbance); Hickey v. Reed-er, 12 F.3d 754, 759 (8th Cir.1993) (holding that use of stun gun for reason other than" }, { "docid": "17774481", "title": "", "text": "died from the gunshot wounds. Plaintiffs’ theory of liability is that DeFab-bo contributed to the circumstances that led to the use of deadly force. Deadly force, plaintiffs claim, would have been unnecessary had DeFabbo arrested and handcuffed Romero, an intoxicated driver, as required by standard police procedure and state law. DeFabbo moved for summary judgment on the basis of qualified immunity. Citing Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), DeFabbo claims that his use of deadly force in self-defense was not unreasonable. He also states that his failure to handcuff Romero did not violate the constitution. The district court denied DeFabbo’s motion for summary judgment, ruling that genuine issues of material fact existed regarding the reasonableness of the use of deadly force and that DeFabbo failed to show he was unaware, or should not have known, of law clearly establishing the right to be free from unreasonable seizures. The district court did not comment on plaintiffs’ theory of liability. “We review the district court’s denial of qualified immunity on summary judgment de novo.” Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir.1995). When a defendant asserts the affirmative defense of qualified immunity, “the plaintiff initially bears a heavy two-part burden.” Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.1995). The plaintiff must show (1) “that the defendant’s actions violated a constitutional or statutory right” and (2) that the right “allegedly violated [was] clearly established at the time of the conduct at issue.” Id. “‘[P]laintiff must articulate the clearly established constitutional right and the defendant’s conduct which violated the right with specificity.’ ” Id. (quoting Romero, 45 F.3d at 1475). “If the plaintiff fails to carry either part of his two-part burden, the defendant is entitled to qualified immunity.” Id. at 1535. If the plaintiff has made the required two-part showing, “ 'then the defendant bears the burden, as a movant for summary judgment, of showing no material issues of fact remain that would defeat the claim of qualified immunity.’ ” Romero, 45 F.3d at 1475 (quoting Walter v. Morton, 33 F.3d 1240, 1242 (10th" }, { "docid": "23613729", "title": "", "text": "supervisory liability. With respect to Mr. DeSpain’s claims against defendants Ruettgers and Bustos individually, the magistrate judge determined these defendants were entitled to qualified immunity on the ground that Mr. DeSpain had failed to show either defendant’s conduct violated the Eighth Amendment. The district court conducted a de novo review and adopted the magistrate’s report and recommendation. On appeal, Mr. DeSpain challenges only the district court’s ruling that defendants Ruettgers and Bustos are entitled to qualified immunity based on the court’s conclusion that, even accepting Mr. DeSpain’s version of the disputed facts, he failed to state an Eighth Amendment violation. We exercise jurisdiction under 28 U.S.C. § 1291, reverse the grant of summary judgment, and remand for further proceedings consistent with this opinion. I Qualified Immunity In order to promote the efficient administration of public services, the doctrine of qualified immunity “shields government officials performing discretionary functions from individual liability under 42 U.S.C: § 1983 unless their conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir.1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “[Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset.” Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir.1995). Once a defendant asserts qualified immunity as a defense, the plaintiff must carry the burden of showing qualified immunity is not proper under the circumstances. Id. To do this, the plaintiff must show that (1) the defendant’s conduct violated a constitutional right and (2) the law governing the conduct was clearly established at the time of the alleged violation. Baptiste, 147 F.3d at 1255. We review the legal issues surrounding the grant of qualified immunity de novo, viewing all evidence in the light most favorable to Mr. DeSpain as the non-moving party. See id.; Patrick v. Miller, 953 F.2d 1240, 1243 (10th Cir.1992). We turn first to the requirement that the plaintiff show a constitutional violation, and determine whether Mr. DeSpain stated a sufficient" }, { "docid": "22566331", "title": "", "text": "in two instances: (1) when they failed to notify the court of his Motion to Quash the administrative process; and (2) when they falsely advised his employer to garnish his wages on the first pay period after April 16, 1997, when the default order stated its effective date was not until April 25, 1997. Mr. Whitesel also named as a defendant Nelson Nadeau, Director of Human Services, asserting that he created the policy pursuant to which Ms. Bouchard and Ms. Barr were acting. The district court granted summary judgment in favor of the Human Services employees, finding that they were entitled to qualified immunity. “[W]e review summary judgment decisions involving a qualified immunity defense somewhat differently than other summary judgment rulings.” Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir.1995) (quotations omitted). “This difference arises from the unique nature of qualified immunity, which is designed to protect public officials from spending inordinate time and money defending erroneous suits at trial.” Nelson v. McMullen, 207 F.3d 1202, 1206 (10th Cir.2000). “When a defendant raises the qualified immunity defense on summary judgment, the burden shifts to the plaintiff to meet a strict two-part test.” Id. “First, the plaintiff must demonstrate that the defendant’s actions violated a constitutional or statutory right. Second, the plaintiff must show that the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue.” Albright v. Rodriguez, 51 F.3d 1531, 1534-35 (10th Cir.1995) (citations omitted). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Oliver v. Woods, 209 F.3d 1179, 1185 (10th Cir.2000) (quotations omitted). If, and only if, the plaintiff establishes both elements of the test does a defendant then bear the traditional burden of showing “that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.” Albright, 51 F.3d at 1535 (quotations" } ]

[ { "docid": "997929", "title": "", "text": "plot of land where it was grown. The government thus met its burden of proving that Moses had possessed dangerous weapons during his offense. Sanchez, 928 F.2d at 1460 (holding that a defendant possesses a weapon for the purposes of § 2Dl.l(b)(l) if he maintains ownership or control over the weapon itself or the premises where the weapon is located); United States v. Hall, 46 F.3d 62, 63 (11th Cir.1995) (holding that a defendant possesses a weapon during the commission of an offense if the firearm was present at the site of that offense). Moses contends, however, that he met his burden of showing that any connection between the firearms in his house and the marijuana-manufacturing conspiracy was clearly improbable. The district court found otherwise, concluding that Moses did not adequately disprove a connection between his .22 caliber Ruger pistol and the conspiracy. This factual finding will not be set aside on appeal unless we conclude that it is clearly erroneous. United States v. Coward, No. 95-4138, 1996 WL 382258, at *3 (6th Cir. July 5, 1996) (unpublished table decision) (holding that the district court’s determination that the defendant did not prove that a connection between the firearms in his possession and his drug offense was clearly improbable is a factual finding that is subject to the “clearly erroneous” standard of review). A factual finding is clearly erroneous where, although there is evidence to support that finding, “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, 92 L.Ed. 746 (1948). This court considers various factors in reviewing the question of whether a firearm was related to a particular drug offense, including the proximity of the firearm to the drugs, the type of firearm involved, whether the firearm was loaded, and any alternative purpose offered to explain the presence of the firearm. Hill, 79 F.3d at 1486. We will now examine each of these factors in turn. With regard to the proximity factor, Moses testified" } ]

[ { "docid": "14537807", "title": "", "text": "transaction type as the charged drug offense). Because of May’s direct involvement with the handling of the kilogram of cocaine and the use of the marijuana distribution system for the cocaine, we find that the district court’s inclusion of the cocaine in the drug quantity was not clearly erroneous. B. Deadly Weapon Enhancement May challenges the two-level enhancement for the presence of a gun, arguing that the district court erroneously held that it is foreseeable that guns will always be involved in the collection of drug debts. Where only a guideline’s application to the facts of a case is at issue, we review for clear error. United States v. Jackson, 3 F.3d 506, 509 (1st Cir.1993). A two-level increase in offense level is mandated “[i]f a dangerous weapon (including a firearm) was possessed” in the course of a drug offense. U.S.S.G. § 2Dl.l(b)(l). The enhancement applies “if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id., cmt. n.3. In a conspiracy case, the government must first show that one of the defendant’s co-conspirators “possessed a weapon during the offense.” United States v. Nelson-Rodriguez, 319 F.3d 12, 59 (1st Cir.2003). Once the government demonstrates the possession of a gun, the burden is on the defendant to show that the connection between the gun and the drug crime was “clearly improbable.” See Jackson, 3 F.3d at 509. In this case, the government demonstrated a gun was used in the course of the conspiracy. May went to Texas to help Barbour collect a marijuana debt. One of May’s co-conspirators brought a .38 caliber pistol along when they went to collect the debt; May’s testimony at Barbour’s trial indicated he knew his co-conspirator had the gun. May presented no evidence to show the improbability of the connection between the gun and the conspiracy. Given May’s failure to show that the gun was likely not connected to the conspiracy, we cannot say that the district court erred in applying the deadly weapon enhancement. C. Role in the Offense May also challenges the application of the four-level" }, { "docid": "997932", "title": "", "text": "drug offenses. Nor could he plausibly do so, because federal appellate courts have consistently upheld § 2Dl.l(b)(l) enhancements based upon the defendant’s possession of a .22 caliber pistol. E.g., United States v. Cruz, No. 98-1970, 2000 WL 377060, at *2-*3 (6th Cir. April 7, 2000) (unpublished table decision) (upholding a § 2Dl.l(b)(l) enhancement where the defendant constructively possessed a .22 caliber pistol while engaged in the distribution of marijuana); United States v. Duke, 935 F.2d 161, 162 (8th Cir.1991) (upholding a § 2Dl.l(b)(l) enhancement where a search of the defendant’s home “uncovered twenty-three grams of a cocaine-like substance, two scales, and a .22 caliber revolver”). This factor is thus of no help to Moses in showing that it is clearly improbable that the pistol was related to the marijuana conspiracy. For the third factor, this court looks to whether the firearm was loaded during the drug offense. Moses testified that he could not specifically recall if the .22 caliber pistol was loaded or unloaded during the marijuana-manufacturing conspiracy. He in fact conceded that “[i]f any of them was loaded it could have been that one [the .22 caliber pistol].” Without any evidence showing that the .22 caliber pistol was unloaded, this factor does not aid Moses in avoiding the presumption in favor of the government on this issue. The last factor examines whether the defendant has offered any alternative explanation for the presence of the firearm. Moses testified that he used the .22 caliber pistol for hunting racoons. The district court determined that Moses’s testimony lacked credibility, a determination that is due considerable deference. Peveler v. United States, 269 F.3d 693, 702 (6th Cir.2001) (“We are generally reluctant to set aside credibility determinations made by the trier of fact, who has had the opportunity to view the witness on the stand and assess his demeanor .”). In any event, absent any circumstantial evidence indicating that the pistol was used only for hunting, Moses’s self-serving testimony is inadequate to justify setting aside the district court’s finding that Moses failed to satisfy the “clearly improbable” standard. He did not, for example, offer" }, { "docid": "22913358", "title": "", "text": "amount of marijuana in the packages were sufficient to establish that Woodard intended to distribute the marijuana. See United States v. Vomero, 567 F.2d 1315, 1316 (5th Cir.1978) (“Moreover, possession of a large quantity of narcotics supports the inference that distribution was intended.”). We also conclude that the evidence was sufficient to establish that Woodard violated 18 U.S.C. § 924(c). To prove the Count Five offense, the Government had to establish that Woodard (1) knowingly (2) possessed a firearm (3) in furtherance of any drug trafficking crime for which he could be prosecuted in a court of the United States. 18 U.S.C. § 924(c)(1)(A). The “in furtherance” element requires proof that “the firearm helped, furthered, promoted, or advanced the drug trafficking.” United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir.2002). We consider several factors in determining whether a defendant possessed a firearm “in furtherance” of a drug trafficking crime such as: The type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to the drugs or drug profits, and the time and circumstances under which the gun is found. Id. at 1253 (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.2000)). There is no dispute that Woodard knowingly possessed a firearm. Woodard contends that he did not use this firearm in furtherance of a drug trafficking crime because he had a license for the Llama pistol and a plausible reason to be carrying it—the neighborhood around the residence was dangerous—which was unconnected to any drug trafficking crime. Woodard’s argument, though, fails to demonstrate that the guilty verdict was not reasonable. Woodard had a loaded pistol, with a round in its chamber, in his waistband—he had easy access to the pistol and it was ready to be used—while taking delivery of packages containing roughly one hundred pounds of marijuana, an amount worth a considerable sum of money. On these facts, a reasonable jury could infer that Woodard had the pistol to use" }, { "docid": "7468402", "title": "", "text": "firearms were used in connection with the drug offenses, the district court emphasized that the cocaine was sold at defendant’s residence, the weapons were loaded, and the pistol-gripped shotgun was “not of a hunting type nature.” J.A. at 412 (Sentencing Tr. at 206). These facts contrast sharply with the example of “an unloaded hunting rifle in the closet,” which the commentary to § 2D1.1 offers as a situation in which it would be clearly improbable that the firearm was used in connection with the offense. U.S.S.G. § 2D1.1, commentary, applic. note 3. Based upon these facts, the district court did not clearly err in applying the enhancement. The defendant relies on our opinion in United States v. Peters, 15 F.3d 540 (6th Cir.), cert. denied, 513 U.S. 883, 115 S.Ct. 219, 130 L.Ed.2d 146 (1994), for his argument that the district court erred in applying the § 2Dl.l(b)(l) enhancement. In Peters, we affirmed the district court’s decision not to apply a § 2Dl.l(b)(l) enhancement where a handgun was found in a dresser that also contained crack cocaine. Id. at 546. Despite the factual similarities in the present case, defendant’s reliance on Peters is unavailing. The Peters decision was based upon the high degree of deference afforded to the district court’s decision whether to apply the dangerous-weapon enhancement. In Peters, the district court made a finding of fact that the gun was not possessed in connection with the drug offense. Although the facts of that case might have permitted the opposite conclusion, we did not believe that the facts were so one-sided that the dis trict court’s finding was clear error. Id. The Peters decision offers little assistance to a defendant when, as was the case here, the district court does apply the enhancement and it is the defendant, as opposed to the government, who appeals. Hill, 79 F.3d at 1486 (distinguishing Peters). III. CONCLUSION Based upon the foregoing analysis, we AFFIRM both the district court’s denial of defendant’s motion to suppress and the court’s determination of the defendant’s sentence. . Brogdon was called to testify at the suppression hearing, but" }, { "docid": "16576670", "title": "", "text": "in order to meet his or her burden. See Hough, 276 F.3d at 894 (“[Speculation is not evidence and does not establish that it was ‘clearly improbable’ that [the defendant] possessed the firearms during the offense.”); see also Wheaton, 517 F.3d at 868 (“The bare assertion of Wheaton’s counsel that the gun might simply have been for the lawful purpose of defending the residence is insufficient to sustain Wheaton’s burden of showing it was ‘clearly improbable’ that the gun was related to the drug conspiracy.”). This Court considers the following factors, none of which is alone controlling, when determining whether the application of a Section 2Dl.l(b)(l) enhancement was appropriate: (1) the type of firearm involved; (2) the accessibility of the weapon to the defendant; (3) the presence of ammunition; (4) the proximity of the weapon to illicit drugs, proceeds, or paraphernalia; (5) the defendant’s evidence concerning the use of the weapon; and (6) whether the defendant was actually engaged in drug-trafficking, rather than mere manufacturing or possession. United States v. Edmonds, 9 Fed.Appx. 330, 332 (6th Cir.2001) (citing United States v. Calhoun, 49 F.3d 231, 237 (6th Cir.1995); United States v. Chalkias, 971 F.2d 1206, 1217 (6th Cir.1992); United States v. McGhee, 882 F.2d 1095, 1099 (6th Cir.1989)). The district court did not err in concluding that the Government presented sufficient evidence to meet its burden. The search was conducted only a few days after the controlled purchase of methamphetamine at Greeno’s property. The firearms were found throughout the property in relatively close proximity to drugs and drug paraphernalia. Thus, regardless of where Greeno was on the property, he had ready access to the firearms. Greeno does not dispute that he possessed the firearms, nor that the firearms were found on his property during the existence of the drug conspiracy. Greeno nonetheless contends that the district court erred by applying the Section 2Dl.l(b)(l) enhancement because there was no direct evidence showing he possessed a firearm when he sold drugs or that the firearms were found with drugs or drug paraphernalia. Greeno relies on United States v. Jock, 239 Fed.Appx. 126" }, { "docid": "22593583", "title": "", "text": "potentially facilitated — i.e., had some potential emboldening role in — a defendant’s felonious conduct.” And, the First Circuit has stated that “the phrase ‘in connection with’ should be interpreted broadly and ... where a defendant’s possession of a firearm aids or facilitates the commission of another offense, the requisite link is present.” Thompson, 32 F.3d at 7. In light of the Supreme Court’s discussion in Smith, we concur with these statements of the controlling standard. The uncontroverted evidence presented at Wyatt’s trial and sentencing hearing established that Wyatt maintained two concealed loaded weapons in the bedroom of his small house. It is also undisputed that Wyatt distributed marijuana from the house ,and stored marijuana in the house. Although the weapons were concealed under the bed and on a shelf in the closet, there is no indication in the record that the weapons were not readily accessible. Furthermore, the weapons were stored just a few feet from where Wyatt maintained his drug ledgers and drug packaging materials. From these facts, Judge Miller inferred that the weapons served the purpose of “protectfing] the business and the stored marijuana.” From the fact that the weapons were described by police as being dusty, he inferred that Wyatt “may never have been called upon to use the guns to protect the business, the drugs, or himself’; however, he deemed this point to be immaterial. We find no clear error in the inferences or conclusions drawn by Judge Miller. As this Court has had opportunity to remark on all too many occasions, “[i]t is widely acknowledged that guns are ‘tools’ of the trade” in the drug business, United States v. Turner, 93 F.3d 276, 289 (7th. Cir.1996). This is not a case where an unloaded hunting rifle was found in the defendant’s closet. Compare U.S.S.G. § 2D1.1(b)(1), Application Note 3. Rather, two loaded weapons — one of which was a short-barreled rifle that was threaded to fit either of two silencers found in the room — were seized in close proximity to where Wyatt maintained his drug records and packaging materials. The accessibility and proximity" }, { "docid": "22080391", "title": "", "text": "adopted the PSR’s findings that 286.44 pounds of marijuana were found in a toolbox in the bed of the truck in which Jacquinot was riding and that two unloaded handguns were found in the cab of the truck. Jacquinot does not contest these findings and even acknowledges that ammunition was also found in the truck. Accordingly, the district court did not err, clearly or otherwise, in finding that § 2D1.1 was applicable because there was a temporal and spatial relationship between Jacquinot, the guns, and his drug trafficking offense. See United States v. Brown, 217 F.3d 247, 261 (5th Cir.2000) (applying § 2Dl.l(b)(l) adjustment where shotgun found in truck of vehicle used to transport drugs), vacated on other grounds by Randle v. United States, — U.S. -, 121 S.Ct. 1072, 148 L.Ed.2d 950 (2001); United States v. Musquiz, 45 F.3d 927, 929, 932 (5th Cir.1995) (applying § 2Dl.l(b)(l) adjustment where gun found under the seat of car used in attempted theft of narcotics). There is no merit to Jacquinot’s argument that because he was not charged with the 18 U.S.C. § 924(c)(1) offense of possessing a firearm in furtherance of a drug trafficking offense and because Agent Snodgrass’ memo stated that the guns were not loaded, no attempt was made to use them, and there was no evidence that the guns had been intended for use against law enforcement officers, it is clearly improbable that the guns were connected to his drug trafficking offense. For purposes of the § 2Dl.l(b)(l) adjustment, “[i]t is not necessary for possession of the weapon ... to be sufficiently connected with the crime to warrant prosecution as an independent firearm offense.” United States v. Villarreal, 920 F.2d 1218, 1221 (5th Cir.1991). And it is not material that the guns were not loaded; 2Dl.l(b)(l) is an added punishment for drug offenders who heighten the danger of drug trafficking by possessing a dangerous weapon, and the mere presence of a gun, loaded or not, can escalate the danger. See United States v. Mitchell, 31 F.3d 271, 278 (5th Cir.1994). Finally, it does not matter whether Jacqui-not actually" }, { "docid": "4885160", "title": "", "text": "loaded Ruger .223 caliber semi-automatic rifle seized from the upstairs main bedroom closet; (3) a loaded Ruger .22 caliber pistol seized from the dining room; and (4) an unloaded Winchester .22 caliber single shot, bolt action rifle seized from the living room. Betz argues that the government failed to present evidence from which to infer, beyond mere presence, that the firearms had a nexus to his drug activities. He argues that it is common for people living in rural areas to have firearms on their premises. Moreover, he points out that the firearms were not found in' close proximity to large amounts of marijuana — only 2.91 kilograms of marijuana were found at Betz’s residence, and none of the weapons was found in the shed where the marijuana was located. Nonetheless, even though the guns were not found in the shed with the marijuana, they were found on premises from which Betz conducted drug-related activities where they were readily accessible to Betz. See Hiveley, 61 F.3d at 1362-63 (upholding enhancement where guns were seized from the defendant’s home where he lived with his wife and two minor children, but were not specifically found in the trailer where the marijuana was found). Three of the guns were loaded and one had ammunition nearby, suggesting more than a run-of-the-mill state of readiness for immediate use. As the district court observed, “people who are dealing in drugs frequently use dangerous weapons, or have possession of dangerous weapons, for the purposes of protecting their bounty.” This court has said that “firearms are tools of the [drug dealer’s] trade.” Turpin, 920 F.2d at 1387 (internal citation omitted). We agree with the district court that “[a]nyone who has marijuana in his home, as this defendant did, and who has admitted that he is growing ... and cultivating marijuana in two different sections in the Mark Twain National Forest, and who has over $6,000 [sic] of raw currency on his kitchen table, has something to protect.” We find no error, clear or otherwise, in the district court’s determination that, in all the circumstances, it was not clearly" }, { "docid": "12431645", "title": "", "text": "LAY, Senior Circuit Judge. Mark Douglas Petty and Mary Jayne Roberts appeal from their sentences under 21 U.S.C. § 841(a)(1) for possession of marijuana with intent to distribute. They complain that the district court erroneously awarded them two-level enhancements under United States Sentencing Guidelines § 2Dl.l(b)(l) for possession of a firearm during the commission of a drug offense. Petty and Roberts pleaded guilty to narcotics violations following a search, pursuant to a warrant, of the home that they share. During the search, agents seized 1.43 pounds of marijuana as well ás paraphernalia for the use and distribution of drugs. In addition, the officers seized a Colt .25 caliber semi-automatic handgun from the defendants’ kitchen, a Llama .357 caliber revolver from the master bedroom, and ammunition for the .357 revolver found near the kitchen. Neither of the weapons was loaded. At sentencing, the defendants objected to the two-level enhancement under section 2Dl.l(b)(l). Section 2Dl.l(b)(l) states: “If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.” The Commentary provides further guidance: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. U.S.S.G. § 2D1.1(b)(1), comment, (n. 3). The defendants argue that because the government presented no evidence linking the weapons to their offenses, the trial court should have been precluded from awarding a two-level enhancement under section 2Dl.l(b)(l).. In effect, Roberts and Petty argue that the trial court improperly shifted the burden to the defendants to prove the clear improbability that the weapons were connected with the offense. We review a district court’s legal interpretation of the Guidelines de novo, United States v. Agbai, 930 F.2d 1447, 1448 (10th Cir.1991), and we use the clearly erroneous standard to review a trial court’s factual determinations at sentencing, United States v. Easterling, 921 F.2d 1073, 1077 (10th Cir.1990), cert." }, { "docid": "15561288", "title": "", "text": "level increase “[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). The government bears the burden of showing by a preponderance of the evidence that a weapon was present and that it is not clearly improbable that the weapon was connected with the offense. See Belitz, 141 F.3d at 817; see also U.S.S.G. § 2Dl.l(b)(l) comment, (n. 3). The government can show that a weapon is connected with the offense by establishing a temporal and spatial relation between the weapon, the defendant, and the drugs. See United States v. Payne, 81 F.3d 759, 763 (8th Cir.1996). In this case, police found several firearms in Moore’s bedroom, including a loaded weapon under Moore’s pillow. Police also found a small quantity of drugs in his bedroom, a large quantity of methamphetamine in the next room, and twenty pounds of marijuana in the basement. This constitutes a sufficient temporal and spatial relation between Moore, the weapons, and the drugs. See Belitz, 141 F.3d at 817-18 (upholding § 2Dl.l(b)(l) increase where defendant had loaded gun in living room, gun was easily accessible, and drugs were located in basement). Our conclusion that the increase under § 2Dl.l(b)(l) was proper dictates our conclusion that Moore was ineligible for the “safety valve” provision under § 5C1.2(2). See Coleman, 148 F.3d at 903-04 (applying the “clearly improbable” standard of § 2Dl.l(b)(l) in evaluating eligibility for “safety valve” decrease under § 5C1.2(2)); see also United States v. Smith, 175 F.3d 1147, 1149 (9th Cir.1999) (“[E]very circuit to consider the issue has held -that conduct which warrants an increase in sentence under § 2Dl.l(b)(l) necessarily defeats application of the safety valve.”). Thus, the district court did not err in assigning a two-level increase for possessing a weapon and in denying the “safety valve” decrease. ■ V. Moore raises several additional claims related to his conviction and sentence. We have carefully considered each of these claims, and conclude they are without merit. See 8th Cir.R. 47B. Accordingly, we affirm the decision of the district court. . During the relevant time period, Moore and his ex-wife, Marlas Moore, were" }, { "docid": "7468401", "title": "", "text": "for clear error the district court’s determination of wheth er the defendant possessed a weapon in connection with the drug offense. United States v. Hill, 79 F.3d 1477, 1486 (6th Cir.), cert. denied, 519 U.S. 858, 117 S.Ct. 158, 136 L.Ed.2d 102 (1996). The district court’s application of the § 2Dl.l(b)(l) enhancement was not clearly erroneous. Both firearms were found in defendant’s bedroom, and the shotgun was located in the same closet as the seized cash. Drugs were also found in the resi-. dence, and evidence established that the defendant sold cocaine in his residence as recently as the day before the search. This court has upheld § 2Dl.l(b)(l) enhancements in similar factual circumstances. See, e.g., Hill, 79 F.3d at 1486 (upholding enhancement where drugs were found in “residence to which [defendant] had full access and where drugs were found”); Snyder, 913 F.2d at 303-04 (holding that discovery of gun in defendant’s night stand in residence where drugs were found was sufficient to warrant enhancement). In concluding that it was not clearly improbable that the firearms were used in connection with the drug offenses, the district court emphasized that the cocaine was sold at defendant’s residence, the weapons were loaded, and the pistol-gripped shotgun was “not of a hunting type nature.” J.A. at 412 (Sentencing Tr. at 206). These facts contrast sharply with the example of “an unloaded hunting rifle in the closet,” which the commentary to § 2D1.1 offers as a situation in which it would be clearly improbable that the firearm was used in connection with the offense. U.S.S.G. § 2D1.1, commentary, applic. note 3. Based upon these facts, the district court did not clearly err in applying the enhancement. The defendant relies on our opinion in United States v. Peters, 15 F.3d 540 (6th Cir.), cert. denied, 513 U.S. 883, 115 S.Ct. 219, 130 L.Ed.2d 146 (1994), for his argument that the district court erred in applying the § 2Dl.l(b)(l) enhancement. In Peters, we affirmed the district court’s decision not to apply a § 2Dl.l(b)(l) enhancement where a handgun was found in a dresser that also contained" }, { "docid": "3558089", "title": "", "text": "a “safety valve” reduction, a defendant must prove by a preponderance of the evidence that he “did not ... possess a firearm ... in connection with the offense.” U.S.S.G. § 501.2(a)(2). In contrast, to enhance a sentence under § 2Dl.l(b)(l), the government must first demonstrate by a preponderance of the evidence that the defendant possessed a firearm “during the commission of a drug-trafficking offense.” United States v. Moses, 289 F.3d 847, 850 (6th Cir.2002) (treating “during the commission of’ as “during the period [or time] of’ the drug-trafficking offense). If the government meets this burden, a presumption arises that such possession was “connected to the defendant’s offense.” Id. The defendant may rebut this presumption only by demonstrating “that it is clearly improbable that the ... [firearm] was connected to the offense.” Id. (emphasis added) (specifying some of the factors in determining “whether a firearm was related to an offense, including the proximity of the firearm to the drugs, the type of firearm involved, whether the firearm was loaded, and any alternative purpose offered to explain the presence of the firearm”). In Stewart, this Court held that the district court did not clearly err in applying a § 2D1.1(b)(1) enhancement upon finding that the defendant did not meet “his burden of showing that it was clearly improbable that the weapon was connected to his drug trafficking offense.” 306 F.3d at 327 (emphasis added). After noting that the district court considered the applicability of § 501.2(a) separately from that of § 2D1.1(b)(1), we then held that the court “did not clearly err in finding that ... [the defendant] failed to show by a preponderance of the evidence that he was eligible for” § 5C1.2(a)’s “safety valve” reduction. Id. at 327 n. 19 (emphasis added). Without expressly holding so, we observed that “[e]very circuit thus far that has considered the issue has held that[,] where a defendant had ... possession over a firearm such that an increase to his or her base offense level under § 2D1.1 is appropriate, such possession ‘defeats [the] application of the safety valve.’ ” Id. (quoting United States" }, { "docid": "22561969", "title": "", "text": "that the district court made sufficient findings that Joseph supervised people. The district court found that Joseph “dealt with a variety of sources,” and noted that while Joseph may not have had a “sales staff,” he did have people who distributed marijuana on his behalf. Moreover, many of the other factors spelled out in the commentary were addressed by the district court, which findings are supported by ample evidence. As should be clear, the mere fact that Joseph testified that he was merely a mule, not a leader, is not enough to counter the evidence to the contrary, especially in light of the district court’s finding that Joseph lacked credibility. b. Possession of a Firearm Joseph next argues that he was wrongly assessed points for possessing a firearm. We review for clear error the district court’s finding that the defendant possessed a firearm during a drug crime within the meaning of U.S.S.G. § 2D1.1(b). See Elder, 90 F.3d at 1133. A specific offense characteristic under the guideline for conspiracy to unlawfully manufacture or traffic in controlled sub stances is the possession of a dangerous weapon, which calls for a two-level enhancement. See U.S.S.G. § 2D1.1(b)(1). The application notes explain: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. Id., comment, (n.3). Thus, in order for the two-level increase to apply, all that the government need show is that a firearm was possessed, and that it is not clearly improbable that it was possessed in connection with the offense. See United States v. Kincaide, 145 F.3d 771, 784 (6th Cir.1998). Considering only the gun that was located at the top of the basement stairwell — since only a single gun is needed to merit the two-level increase — it was, obviously, “possessed.” The only bases for the defendant’s" }, { "docid": "997931", "title": "", "text": "that he kept the .22 caliber pistol in his bedroom closet. But he never stated where in the house he dried and weighed the marijuana. If he did so in or near the bedroom, the pistol would have been reasonably accessible to Moses as he carried out the conspiracy. United States v. Noble, 246 F.3d 946, 964 (7th Cir.2001) (ruling that where a firearm is located in a closet that is adjacent to a room where drug proceeds are kept, the proximity of the firearm to the proceeds “provides a sufficient nexus to conclude that it was not clearly improbable that the gun was connected with the offense”) (internal quotation marks omitted). Moses therefore failed to offer evidence showing that the location of the pistol was inconsistent with the firearm having a connection to the marijuana conspiracy. The second factor focuses on whether the firearm possessed by a defendant is of a type typically used in drug trafficking. Moses does not contend that a .22 caliber pistol is an uncommon weapon among those who commit drug offenses. Nor could he plausibly do so, because federal appellate courts have consistently upheld § 2Dl.l(b)(l) enhancements based upon the defendant’s possession of a .22 caliber pistol. E.g., United States v. Cruz, No. 98-1970, 2000 WL 377060, at *2-*3 (6th Cir. April 7, 2000) (unpublished table decision) (upholding a § 2Dl.l(b)(l) enhancement where the defendant constructively possessed a .22 caliber pistol while engaged in the distribution of marijuana); United States v. Duke, 935 F.2d 161, 162 (8th Cir.1991) (upholding a § 2Dl.l(b)(l) enhancement where a search of the defendant’s home “uncovered twenty-three grams of a cocaine-like substance, two scales, and a .22 caliber revolver”). This factor is thus of no help to Moses in showing that it is clearly improbable that the pistol was related to the marijuana conspiracy. For the third factor, this court looks to whether the firearm was loaded during the drug offense. Moses testified that he could not specifically recall if the .22 caliber pistol was loaded or unloaded during the marijuana-manufacturing conspiracy. He in fact conceded that “[i]f any" }, { "docid": "12957739", "title": "", "text": "anything to advance his cause, including making illusory promises to the government in exchange for a favorable sentencing recommendation. Since the district court was in the best position to determine this issue and had ample opportunity to assess Atterson’s character and veracity, we can not conclude that the court’s failure to award credit under this Guideline resulted in an abuse of its discretion. 3. THE GOVERNMENT’S CROSS-APPEAL The facts developed at Atterson’s sentencing hearing reveal that agents, upon executing the search warrant at At-terson’s home, found 894 grams of marijuana in Atterson’s freezer and small amounts of cocaine and marijuana in his kitchen, living room, and bedroom. Records pertaining to Atterson’s drug dealings were also discovered at his home. A triple-beam balancing scale was discovered in a closet. Two loaded handguns were found in a drawer in the headboard to Atterson’s bed. Cash totalling $1000 was found in another headboard drawer. Atterson did not dispute these facts at his sentencing hearing. He testified that he had owned one of the guns for 18 years and had rarely fired it. The other gun belonged to a friend. Atterson conceded that the guns were kept in a drawer next to a drawer containing a large amount of cash. Atterson advised the court that he had never carried the gun in connection with any of his drug-related activities. The government requested an enhancement based on Guideline Section 2Dl.l(b) which mandates a two-level increase for offenses involving drugs “[i]f a dangerous weapon (including a firearm) was possessed during the commission of the offense_” U.S. S.G. Section 2Dl.l(b). The commentary to Section 2D 1.1 provides in part: [t]he enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. U.S.S.G. Section 2D1.1, comment, n. 3 (emphasis added). The district judge was obviously troubled by the" }, { "docid": "997928", "title": "", "text": "2Dl.l(b)(l) is proper only if the government establishes, by a preponderance of the evidence, that (1) the defendant possessed a dangerous weapon (2) during the commission of a drug-trafficking offense. United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.1996). If the government proves both of these elements, the weapon is presumed to have been connected to the defendant’s offense. United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir.1991). The defendant can rebut this presumption only by showing that it is “clearly improbable that the weapon was connected to the offense.” U.S. Sentencing Guidelines Manual § 2D1.1 comment, n. 3. In the present case, the district court found that Moses possessed several firearms while carrying out the marijuana-manufacturing conspiracy. Moses does not dispute this finding. Indeed, Moses acknowledged at the sentencing hearing that he kept firearms in his house during the period of the conspiracy. He further admitted that he used his house to perform acts in furtherance of the conspiracy; namely, drying and weighing the marijuana once it had been removed from the plot of land where it was grown. The government thus met its burden of proving that Moses had possessed dangerous weapons during his offense. Sanchez, 928 F.2d at 1460 (holding that a defendant possesses a weapon for the purposes of § 2Dl.l(b)(l) if he maintains ownership or control over the weapon itself or the premises where the weapon is located); United States v. Hall, 46 F.3d 62, 63 (11th Cir.1995) (holding that a defendant possesses a weapon during the commission of an offense if the firearm was present at the site of that offense). Moses contends, however, that he met his burden of showing that any connection between the firearms in his house and the marijuana-manufacturing conspiracy was clearly improbable. The district court found otherwise, concluding that Moses did not adequately disprove a connection between his .22 caliber Ruger pistol and the conspiracy. This factual finding will not be set aside on appeal unless we conclude that it is clearly erroneous. United States v. Coward, No. 95-4138, 1996 WL 382258, at *3 (6th Cir. July" }, { "docid": "997927", "title": "", "text": "guns were in taped boxes that had been brought to his house by Buff, who had allegedly asked Moses to store the weapons there. Moses maintained that the other firearms found in his house, as well as the rifle on the gun rack in his truck, were used only for hunting. The district court, however, did not give full credence to Moses’s testimony. Although the court stated that Moses might have used his rifles solely for hunting, it did not believe that Moses hunted with the .22 caliber Ruger pistol recovered from his house. The court concluded that it was not clearly improbable that Moses had possessed this pistol in connection with his offense, and therefore overruled Moses’s objection to the § 2Dl.l(b)(l) enhancement. This timely appeal followed. II. ANALYSIS A. Firearm enhancement Moses challenges the enhancement of his base offense level pursuant to United States Sentencing Guidelines § 2Dl.l(b)(l). This section provides for a two-point increase in a defendant’s offense level if a firearm is “possessed” during a drug-trafficking crime. An enhancement under § 2Dl.l(b)(l) is proper only if the government establishes, by a preponderance of the evidence, that (1) the defendant possessed a dangerous weapon (2) during the commission of a drug-trafficking offense. United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.1996). If the government proves both of these elements, the weapon is presumed to have been connected to the defendant’s offense. United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir.1991). The defendant can rebut this presumption only by showing that it is “clearly improbable that the weapon was connected to the offense.” U.S. Sentencing Guidelines Manual § 2D1.1 comment, n. 3. In the present case, the district court found that Moses possessed several firearms while carrying out the marijuana-manufacturing conspiracy. Moses does not dispute this finding. Indeed, Moses acknowledged at the sentencing hearing that he kept firearms in his house during the period of the conspiracy. He further admitted that he used his house to perform acts in furtherance of the conspiracy; namely, drying and weighing the marijuana once it had been removed from the" }, { "docid": "15561287", "title": "", "text": "the key given to the eoconspirator, there was sufficient other evidence to support the charge against Moore, including his knowledge that drugs were stored in his house and the fact that he personally unloaded the drug shipments at his house. Thus, the district court did not abuse its discretion in denying Moore’s motion to dismiss count II. IV. Moore argues that the district court erred in assigning a two-level increase under U.S.S.G. § 2Dl.l(b)(l) for possession of a firearm. He also argues that the court erred in finding him ineligible for the “safety valve” provision, U.S.S.G. § 5C1.2, because he possessed a firearm in connection with the offense. We review the district court’s determination that a weapon was sufficiently connected to the offense under § 2D1.1(b)(1) and § 5C1.2(2) for clear error. See United States v. Coleman, 148 F.3d 897, 904 (8th Cir.), cert. denied, — U.S. —, 119 S.Ct. 228, 142 L.Ed.2d 188 (1998); United States v. Belitz, 141 F.3d 815, 817 (8th Cir.1998). Section 2D1.1 of the Sentencing Guidelines provides for a two level increase “[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). The government bears the burden of showing by a preponderance of the evidence that a weapon was present and that it is not clearly improbable that the weapon was connected with the offense. See Belitz, 141 F.3d at 817; see also U.S.S.G. § 2Dl.l(b)(l) comment, (n. 3). The government can show that a weapon is connected with the offense by establishing a temporal and spatial relation between the weapon, the defendant, and the drugs. See United States v. Payne, 81 F.3d 759, 763 (8th Cir.1996). In this case, police found several firearms in Moore’s bedroom, including a loaded weapon under Moore’s pillow. Police also found a small quantity of drugs in his bedroom, a large quantity of methamphetamine in the next room, and twenty pounds of marijuana in the basement. This constitutes a sufficient temporal and spatial relation between Moore, the weapons, and the drugs. See Belitz, 141 F.3d at 817-18 (upholding § 2Dl.l(b)(l) increase where defendant had loaded gun in" }, { "docid": "12533018", "title": "", "text": "of marijuana. Thirty-nine pounds equals 17.7 kilograms; therefore, Griffith claims, the district court erred in its finding that 20.43 kilograms of marijuana was seized. Griffith misstates the substance of Douglas’ testimony. The agent stated: “[W]e eventually found 45 pounds of marijuana in the closet in a green duffel bag.” He testified that there were 40 plastic bags of marijuana in total, not 39, and reiterated that their total weight was about 45 pounds. Perhaps more important, a DEA lab report cited by the district court in its judgment of conviction and sentence stated that the marijuana seized from Griffith’s home weighed 45.05 pounds—the equivalent of 20.43 kilograms. We perceive no error, and certainly no clear error, in the district court’s finding that 20.43 kilograms of marijuana was seized from Griffith’s home. B. The guidelines provide for a 2-level enhancement “[i]f a dangerous weapon (including a firearm) was possessed----” U.S.S.G. § 2D1.1(b)(1). This adjustment “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” United States v. Broussard, 80 F.3d 1025, 1041 (5th Cir.) (quoting U.S.S.G. § 2D1.1 cmt. 3), cert. denied, — U.S. -, 117 S.Ct. 264, 136 L.Ed.2d 189 (1996). Griffith argues on several grounds that the district court clearly erred by imposing a 2-level weapon enhancement. The district court justified the increase on the ground that “the rifle was found next to the drugs and a loaded magazine was found in defendant’s residence.” Griffith first attacks the finding that a loaded magazine was found in the Pritchard Road house. His theory, evidently, is that if no ammunition was found, then it is “clearly improbable that the weapon was connected with the offense.” We reject both the theory and the factual assertion on which it rests. First, assuming arguendo that no ammunition was found, it does not necessarily follow that it was “clearly improbable” that Griffith’s rifle was connected with his offense. There is no suggestion in the guidelines or commentary that unloaded weapons are exempt from the 2-level enhancement in Section 2D1.1(b)(1). Moreover, even if we were" }, { "docid": "12957740", "title": "", "text": "had rarely fired it. The other gun belonged to a friend. Atterson conceded that the guns were kept in a drawer next to a drawer containing a large amount of cash. Atterson advised the court that he had never carried the gun in connection with any of his drug-related activities. The government requested an enhancement based on Guideline Section 2Dl.l(b) which mandates a two-level increase for offenses involving drugs “[i]f a dangerous weapon (including a firearm) was possessed during the commission of the offense_” U.S. S.G. Section 2Dl.l(b). The commentary to Section 2D 1.1 provides in part: [t]he enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. U.S.S.G. Section 2D1.1, comment, n. 3 (emphasis added). The district judge was obviously troubled by the “clearly improbable” standard set forth in the Guideline’s commentary. Ultimately, the court ruled that the Guideline did not apply since there was no evidence to suggest that Atterson had ever carried the gun in connection with any of his drug-related activities. In United States v. Franklin, 896 F.2d 1063 (7th Cir.1990), we rejected defendant’s argument that the mere presence of loaded firearms in his residence did not warrant the application of Section 2D1.1(b)(1) since the evidence did not suggest that the guns were used in connection with the drug charges he was convicted of. Id, at 1065-66. We rejected a similar claim in Durrive, 902 F.2d at 1231-32. In Durrive, we observed that the loaded weapon, which was found in the defendant’s home at the time of his arrest, “was stored in a location that was inaccessible to strangers and casual visitors but readily accessible to Durrive.” Id. at 1232. Moreover, we observed that Section 2Dl.l(b)(l) does not require that the government show a connection between the weapon and the offense, only that the weapon" } ]

[ { "docid": "16040173", "title": "", "text": "an appellate court’s decision before it becomes “final,” that decision becomes ipso jure moot. The proposed rule is inconsistent with the approach taken by the courts with respect to administrative orders. See, e.g., NLRB v. Raytheon Co., 398 U.S. 25, 27, 90 S.Ct. 1547, 1548, 26 L.Ed.2d 21 (1970) (“ ‘[T]he employer’s compliance with an order of the [NLRB] does not render the cause moot, depriving the Board of its opportunity to secure enforcement.’ ”) (quoting NLRB v. Mexia Textile Mills, 339 U.S. 563, 567-68, 70 S.Ct. 826, 828-29, 94 L.Ed.2d 1067 (1950)); NLRB v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 831 (1938) (“[A]n order ... lawful when made, does not become moot because it is obeyed or because changing circumstances indicate that the need for it may be less than when made.”). More important, the new rule suggested by the Justice Department would encourage manipulation of the judicial system by wrong-doers. It would allow them to seek the benefits of a favorable judicial decision but escape some of the more significant adverse consequences of an unfavorable judgment. In the case of the government, heads of administrative agencies and other public officials could as a matter of course cause the withdrawal of decisions establishing unfavorable precedents or vindicating individual rights by complying with those decisions before the mandate issues. Such a result would be inconsistent with the manner in which our system of checks and balances is intended to operate. Accordingly, we reject the Justice Department’s suggestion. Cf. Ringsby Truck Lines v. Western Conference of Teamsters, 686 F.2d 720, 721 (9th Cir.1982) (“If the effect of post-judgment settlements were automatically to vacate the trial court’s judgment, any litigant dissatisfied with a trial court’s findings would be able to have them wiped from the books.”). In order to ensure that the mootness motion is viewed from the most favorable possible procedural standpoint, we also consider it as if it were a part of a petition for rehearing. Doing so, however, does not advance the respondent’s cause. Petitions for rehearing are governed by Fed.R.App.P." } ]

[ { "docid": "16391359", "title": "", "text": "C.F.R. § 102.46(b) (1978) provides further: Any exception to a ruling, finding, conclusion, or recommendation which is not specifically urged shall be deemed to have been waived. Any exception which fails to comply with the foregoing requirements may be disregarded. . 29 U.S.C. § 160(c) (1976). . 29 U.S.C. § 160(d) (1976). . 29 C.F.R. § 102.46(h) (1978). . NLRB v. WTVJ, Inc., 268 F.2d 346, 348 (5th Cir. 1959). . Id. . See, e.g., NLRB v. S.E. Nichols-Dover, Inc., 414 F.2d 561, 563 (3rd Cir.), cert. denied, 397 U.S. 916, 90 S.Ct. 919, 25 L.Ed.2d 96 (1968). . See, e.g., NLRB v. Sky Wolf Sales, 470 F.2d 827, 803-31 (9th Cir. 1972). . NLRB v. Triangle Publications, Inc., 500 F.2d 597, 598 (3d Cir. 1974) (quoting Local 542, Operating Engineers v. NLRB, 328 F.2d 850, 852-53 (3d Cir.), cert. denied, 379 U.S. 826, 85 S.Ct. 52, 13 L.Ed.2d 35 (1964)). . 29 U.S.C. § 160(c) (1976). . See, e. g., NLRB v. Dodson’s Market, Inc., 553 F.2d 617 (9th Cir. 1977); NLRB v. Frick Co., 397 F.2d 956 (3d Cir. 1968). . Section 8(a)(5) provides that it shall be an unfair labor practice for an employer “to refuse to bargain collectively with the representative of his employees.” “To bargain collectively” is defined by § 8(d) as “the performance of the mutual obligation ... to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . “That the employer did not originally understand the full consequences of its illegal acts,” as we stated in NLRB v. Daybreak Lodge Nursing & Convalescent Home, Inc., 585 F.2d at 83, “does not prevent the issuing of a bargaining order and should not, we believe, prevent that order from being made effective as of the date here.” In this case, however, since a valid bargaining order, albeit one that was subsequently vacated, was in effect at the time of the promulgation of the new work rules, it would seem that Hedstrom is precluded from offering this argument. ROSENN, Circuit Judge, dissenting." }, { "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": "1667514", "title": "", "text": "practice in refusing to furnish requested financial data to the Union (as we so hold), the Board’s order requiring disclosure should be denied enforcement. Buick argues that the three-year collective bargaining agreement executed after Buick failed to make disclosure of its books renders present disclosure moot. Buick claims that any information it could be obliged to furnish now has been made stale by the passage of time and can serve no useful purpose to the Union either in its role as a bargaining agent or in its role administering the new collective bargaining agreement. On the other hand, the Board contends that the subsequent execution of the collective bargaining agreement does not “moot” its disclosure order. The Board argues that the forced production of Buick’s economic information would prevent Buick from profiting from its unfair labor practice. Such information, says the Board, could also be used by the Union in “(1) implementing, enforcing or modifying the current agreement; (2) proposing additional requests; (3) formulating future demands or requests; and/or (4) evaluating and assessing the credibility of Respondent’s assertions and claims or the viability of its bargaining position during future negotiations and meetings.” We requested additional post argument briefing, concerning the effect of implementing the Board’s proposed order at this time, during the period of the existing agreement; and at its termination. A Board order, lawful when made, does not become moot solely “because changing circumstances indicate that the need for it may be less than when made.” NLRB v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 831 (1938); see also NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970). Indeed, under the circumstances presented here, we reject Buick’s contention that the signing of a collective bargaining agreement subsequent to a Truitt violation by the employer automatically renders moot a Board order under review which pertains to the refusal to furnish relevant information. We regard Buick’s proscribed conduct as being capable of repetition in some relevant context with the Union. Cf. Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191," }, { "docid": "21613433", "title": "", "text": "new three-Member Board, upon de novo review, adopted the 2012 Decision, Fort Dearborn Co. (“2014 Decision”), 361 N.L.R.B. No. 109 (2014), with one Member concurring, id. at *2 (Member Miscimarra concurring). The Company petitions for review. II. Section 8(a)(1) provides that it is “an unfair labor practice for an employer ... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7 of the Act].” 29 U.S.C, § 158(a)(1). Section 7 grants employees “the right to .self-organization, to form, join, or assist labor organizations, 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 or protection.” Id. § 157. An employer violates Section 8(a)(1) when its statement to an employee, “considering the totality of the circumstances, ... has a reasonable tendency to coerce or to interfere with those rights.” Tasty Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C. Cir. 2001); see also Dover Energy, Inc. v. NLRB, 818 F.3d 725, 729-30 (D.C. Cir. 2016). “Section 8(a)(1) prohibits coercive statements that threaten employees with job loss ... in retaliation for protected union activities.” Progressive Elec., Inc. v. NLRB, 453 F.3d 538, 544 (D.C. Cir. 2006). Under Board precedent, threats to subject employees to closer scrutiny because of union activity also violate Section 8(a)(1). See Oldfield Tire Sales, 221 N.L.R.B. 1275, 1276 (1975). Section 8(a)(3) provides that it is “an unfair labor practice for an employer ... by discrimination in regard to ... tenure of employment or any term or condition of employment to ... discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). Discharge of a worker because of union activity violates Section 8(a)(3), NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 394, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), and “a violation of § 8(a)(3) constitutes a derivative violation of § 8(a)(1),” Metro. Edison Co. v. NLRB, 460 U.S. 693, 698 n. 4, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983). Where the employer purports to have disciplined the employee for reasons unrelated to protected Section 7" }, { "docid": "2386079", "title": "", "text": "supra, 571 F.2d at 473 (alternate ground) (runaway shop). The fact that industry conditions may have changed after the closing, and might now provide a business justification for GCA’s decision to subcontract abroad does not alter the fact that anti-Union animus motivated the closing and subcontracting when they occurred. The Board’s back pay order was proper. It is well settled that “[mjaking the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces,” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197, 61 S.Ct. 845, 854, 85 L.Ed. 1271 (1941), and that “[b]ack pay is one of the simpler and more explicitly authorized remedies utilized to attain this end.” NLRB v. Strong, 393 U.S. 357, 359, 89 S.Ct. 541, 543, 21 L.Ed.2d 546 (1969). The Board did not abuse its discretion in ordering Esprit to pay GCA’s former employees back pay from the time of their unlawful discharges until such time as they secured substantially equivalent employment with Esprit or elsewhere. Similar orders have been enforced in the past. See Darlington Manufacturing Co. v. NLRB, 397 F.2d 760, 773-74 (4th Cir. 1968) (en banc); Local 57, ILGWU v. NLRB, 126 U.S.App.D.C. 81, 86, 374 F.2d 295, 300 (1967). The companies argue that the back pay order subjects them to unlimited back pay liability. We agree with the Board that questions relating to the exact amount of back pay owing (including whether discharged employees made reasonable efforts to secure employment, and whether at some reasonably determinable date employment with GCA would not have been available because GCA operations would have ceased for independent, nondiscriminatory reasons) are prematurely raised in this enforcement petition. Those issues may be explored in a compliance proceeding. See NLRB v. Deena Artware, Inc., 361 U.S. 398, 411, 80 S.Ct. 441, 4 L.Ed.2d 400 (1960) (Frankfurter, J., concurring); NLRB v. Dazzo Products, Inc., 358 F.2d 136, 138 (2d Cir. 1966); NLRB v. Theatrical Employees Local 776, 303 F.2d 513, 521 (9th Cir. 1962). The Board properly ordered the companies to bargain with the" }, { "docid": "2386080", "title": "", "text": "elsewhere. Similar orders have been enforced in the past. See Darlington Manufacturing Co. v. NLRB, 397 F.2d 760, 773-74 (4th Cir. 1968) (en banc); Local 57, ILGWU v. NLRB, 126 U.S.App.D.C. 81, 86, 374 F.2d 295, 300 (1967). The companies argue that the back pay order subjects them to unlimited back pay liability. We agree with the Board that questions relating to the exact amount of back pay owing (including whether discharged employees made reasonable efforts to secure employment, and whether at some reasonably determinable date employment with GCA would not have been available because GCA operations would have ceased for independent, nondiscriminatory reasons) are prematurely raised in this enforcement petition. Those issues may be explored in a compliance proceeding. See NLRB v. Deena Artware, Inc., 361 U.S. 398, 411, 80 S.Ct. 441, 4 L.Ed.2d 400 (1960) (Frankfurter, J., concurring); NLRB v. Dazzo Products, Inc., 358 F.2d 136, 138 (2d Cir. 1966); NLRB v. Theatrical Employees Local 776, 303 F.2d 513, 521 (9th Cir. 1962). The Board properly ordered the companies to bargain with the Union. The Union enjoyed majority support prior to the unfair labor practices. By destroying the bargaining unit, the unfair labor practices have made a fair election, or any election at all, impossible. The Board may issue a bargaining order in such circumstances. See NLRB v. Gissel Packing Co., 395 U.S. 575, 613-14, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). The Board did not abuse its discretion in rejecting the companies’ argument that sporadic picket line violence during the early part of the strike precluded issuance of the bargaining order. The violence involved here was less than that involved in NLRB v. Triumph Curing Center, supra, 571 F.2d 462, in which we approved enforcement of a bargaining order in the face of a similar contention by the employer. We cannot say that the Board abused its discretion in concluding that GCA’s former employees would be adequately served by the Board’s bargaining and back pay orders and that a reopening order would be unduly burdensome. See Garwin Corp., 153 N.L.R.B. 664, 681 (1965), aff’d in pertinent part," }, { "docid": "1667515", "title": "", "text": "of Respondent’s assertions and claims or the viability of its bargaining position during future negotiations and meetings.” We requested additional post argument briefing, concerning the effect of implementing the Board’s proposed order at this time, during the period of the existing agreement; and at its termination. A Board order, lawful when made, does not become moot solely “because changing circumstances indicate that the need for it may be less than when made.” NLRB v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 831 (1938); see also NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970). Indeed, under the circumstances presented here, we reject Buick’s contention that the signing of a collective bargaining agreement subsequent to a Truitt violation by the employer automatically renders moot a Board order under review which pertains to the refusal to furnish relevant information. We regard Buick’s proscribed conduct as being capable of repetition in some relevant context with the Union. Cf. Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974). The significance of the contract execution on March 13, 1973 must therefore be measured by considerations of relevancy (see our discussion infra) rather than by considerations of mootness. V. RELEVANCE An essential ingredient in establishing an unfair labor practice under the doctrine announced in Truitt is that the information withheld be relevant. Relevance, in this case, should be measured with respect to the Union’s statutory functions [the negotiation and administration of the collective bargaining agreement, NLRB v. Acme Indus. Co., 385 U.S. 432, 437, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); International Tel. & Tel. Corp. v. NLRB, 382 F.2d 366, 371-372 (3d Cir. 1967), cert. denied, 389 U.S. 1039 (1968)] and with respect to the ongoing relations of the parties. A. Negotiation Based on the record presented, there is no showing that the information requested during the period of contract negotiations in July and August 1972 is relevant or can be of use to" }, { "docid": "259354", "title": "", "text": "Director for fees, costs and expenditures incurred by the contemptuous acts. This grant of relief survives the termination of the underlying preliminary injunction. The conclusions and holdings of the district court are therefore AFFIRMED in all respects. . Latino Express, of course, denied each of the allegations, but the Board has now found that the respondent did indeed violate Sections 8(a)(1), 8(a)(3) and (1). See Latino Express, Inc. and Carol Garcia and Pedro Salgado and Int’l Bhd. of Teamsters, Local 777, 361 NLRB No. 137, 2014 WL 7149505, *1 (December 15, 2014). The Board’s ruling, however, is irrelevant to our current analysis, as this appeal is from a finding of contempt order issued by the District Court of the Northern District of Illinois, pursuant to its jurisdiction to do so under Section 10(j) of the National Labor Relations Act. Latino Express initially argued that the Supreme Court's recent decision in NLRB v. Noel Canning, - U.S. -, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014) required dismissal of this appeal. Latino Express now agrees with the Board that because this is an appeal from an order of the district court, the Noel Canning decision is not relevant. See Position Statement by Ap-pellee Peter S. Ohr to Court Order of 7/9/14, and Statement of Position by Appellant, Latino Express Incorporated to the Supreme Court's Decision in NLRB v. Noel Canning (at R. 37 and 38 in this court’s docket). And in any event, the Board’s December 15, 2014 ruling rectified any constitutional infirmities in its July 31, 2012 order as identified in Noel Canning (see footnote 2, infra). In short, the Noel Canning decision does not affect the adjudication of the issues before us. . The original July 13, 2012 order of the Board suffered from constitutional infirmities identified in Noel Canning, 134 S.Ct. at 2550—that is, the order was issued by a panel of the Board that lacked a quorum because some Board members who received recess appointments were not validly appointed because, at the time of the appointments, the Senate was not in a recess of sufficient length. 134 S.Ct." }, { "docid": "14279028", "title": "", "text": "even if the motion here was filed pursuant to § 102.48(d), the NLRB was acting within its authority to consider the motion. Raven’s point of error has no merit. III. Enforcement Order The NLRB crossrpetitions for enforcement of its order pursuant to 29 U.S.C. § 160(e). An order issued by the NLRB does not have the effect of law, and the NLRB has no authority to compel compliance or punish noncompliance. The NLRB is thus generally entitled to an enforcement order to bar the continuation or resumption of unfair labor practices. NLRB v. Mexia Textile Mills, Inc., 339 U.S. 563, 567-68, 70 S.Ct. 833, 94 L.Ed. 1067 (1950). Except for the objections discussed and denied above, Raven does not contest the NLRB’s findings. Rather, it argues that enforcement is not warranted because the uncontested charges are all moot. The U.S. Supreme Court has recognized that an enforcement may become moot if a party can show “there is no reasonable expectation that the wrong will be repeated.” NLRB v. Raytheon Co., 398 U.S. 25, 27, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970) (citing NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 428, 67 S.Ct. 1274, 91 L.Ed. 1575 (1947), and United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). Here, Raven makes two arguments why an enforcement order is moot. First, it argues that the order is moot pursuant to our decision in Cagle’s, Inc. v. NLRB,588 F.2d 943 (5th Cir.1979). In Cagle’s this court held that an agreement between an employer and union can be the basis of a conclusion that there is no “reasonable expectation the wrong will be repeated.” Cagle’s, 588 F.2d at 951. Raven argues that an agreement between it and the Union made after the NLRB’s order render all but the direct dealing with employee charge moot, as the agreement ensures there is no reasonable expectation that the other transgressions will be repeated. There is no evidence of such an agreement in the record, however. As Raven as petitioner bears the burden of introducing evidence that" }, { "docid": "13631399", "title": "", "text": "did not preserve this challenge for review by the Board or this Court. II. L & B contends that the Board’s finding/conclusion that the seasonal “extra” employees hired in a prior growing season at Center, Colorado, did not have a reasonable expectation of reemployment and thus were not part of the bargaining unit is not supported by substantial evidence in the record as a whole. We disagree. It is uncontroverted that (a) of the fourteen “extra” or seasonal employees hired by L & B during the year 1981, only one of them worked for L & B during the' 1980 season, (b) the employment of “extra” employees is sporadic and casual on an “as needed” basis, and (c) L & B did not present evidence that it gave preference to any “extra” seasonal employee who had worked for the company previously. “[A]s to questions of fact, the Board’s findings are conclusive and binding if supported by substantial evidence on the record as a whole. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 [71 S.Ct. 456, 95 L.Ed. 456] (1951); N.L.R.B. v. First National Bank of Pueblo, 623 F.2d 686, 691 (10th Cir.1980).” Crane Sheet Metal, Inc. v. N.L.R.B., 675 F.2d 256, 257 (10th Cir.1982). See also, 29 U.S.C. § 160(e); Interior Alterations, Inc. v. N.L.R.B., 738 F.2d 373 (10th Cir.1984). In Crane, supra, the NLRB reversed the decision of the AU. Our standard of review does not change even though the NLRB disagrees with the findings of the AU. Artra Group, Inc. v. N.L.R.B., 730 F.2d 586, 590 (10th Cir.1984). In Burk Bros. v. N.L.R.B., 117 F.2d 686 (3rd Cir.1941), cert. denied., 313 U.S. 588, 61 S.Ct. 1110, 85 L.Ed. 1543 (1941), the Court held that the duty of the NLRB to make findings cannot be delegated to an AU and if there is substantial evidence in support of the Board’s findings which are contrary to those of the AU, they cannot be set aside simply because they differ. The NLRB is empowered to draw permissible inferences from credible testimony. N.L.R.B. v. Dover Corp., 535 F.2d 1205 (10th Cir.1976), cert." }, { "docid": "3679342", "title": "", "text": "in fact enjoyed such status, the refusal-to-bargain finding is without support and enforcement must be denied. The Petition to review in No. 21690 is granted, and the Cross Petition to enforce is denied. Accordingly this disposition renders moot the Petition to review in No. 21469. So ordered. . Acting upon these charges, the General Counsel sought an injunction under § 10 (j) restraining the Company from refusing to bargain pending the outcome of this ease. After a hearing on the merits, Judge Clarie granted the relief sought and recited in detail findings of pertinence tó an understanding of the background here. Hoban v. United Aircraft Corp., 264 F.Supp. 645 (D.Conn.1966). . E.g., NLRB v. Gulfmont Hotel Co., 362 F.2d 588 (5 Cir. 1966); Stoner Rubber Co., 123 N.L.R.B. 1440 (1959); Celanese Corp., 95 N.L.R.B. 664 (1951). . In addition to cases cited in note 2 supra, see NLRB v. Downtown Bakery Corp., 330 F.2d 921 (6 Cir. 1964); Bally Case & Cooler, Inc., 172 N.L.R.B. No. 106 (1968); cf. Retail Clerks Int’l Ass’n, AFL-CIO v. 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" }, { "docid": "12949140", "title": "", "text": "dismiss. The Hospital argues that all the acts of Regional Director Walsh were ultra vires, as his appointment was invalid. The NLRB had appointed him as Regional Director on March 10, 2013. In NLRB v. Noel Canning, — U.S. -, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), the Supreme Court invalidated the recess appointments of three of the Board’s five members. As a result, the Board lacked a valid quorum between January 2012 and August 2013. Therefore, argues the Hospital, Walsh had no authority to issue the complaints against it. See ManorCare of Kingston PA, LLC v. NLRB, 823 F.3d 81, 89 (D.C. Cir. 2016); Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592, 596 & n.1 (3d Cir. 2016). While the Hospital’s argument is correct in its basic assumptions, events have overtaken it since the initial invalidity of Walsh’s appointment and his unlawful issuance of complaints. After the period of invalid Board operation recognized in Noel Canning, the President made valid appointments to create a quorum on the Board. The reconstituted Board ratified the appointment of Walsh as Director, among many other actions. Walsh, as Director, thereafter ratified his own prior invalid actions. Because both the Board and Director Walsh ratified the actions taken during the period in which the Board lacked a valid quorum, we conclude that the Hospital’s motion was properly denied. In general, “[r]atifieation occurs when a principal sanctions the prior actions of its purported agent.” Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203, 212 (D.C. Cir. 1998), superseded by statute on other grounds, Federal Vacancies Reform Act of 1998, Pub. L. No. 105-277, 122 Stat. 2681 (1998), as recognized in S.W. Gen., Inc. v. NLRB, 796 F.3d 67, 70-71 (D.C. Cir. 2015), aff'd — U.S. -, 137 S.Ct. 929, 197 L.Ed.2d 263 (2017). Our precedents establish that ratification can remedy a defect arising from the decision of “an improperly appointed official when.... a properly appointed official has the power to conduct an independent evaluation of the merits and does so.” See Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd.," }, { "docid": "14279029", "title": "", "text": "S.Ct. 1547, 26 L.Ed.2d 21 (1970) (citing NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 428, 67 S.Ct. 1274, 91 L.Ed. 1575 (1947), and United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). Here, Raven makes two arguments why an enforcement order is moot. First, it argues that the order is moot pursuant to our decision in Cagle’s, Inc. v. NLRB,588 F.2d 943 (5th Cir.1979). In Cagle’s this court held that an agreement between an employer and union can be the basis of a conclusion that there is no “reasonable expectation the wrong will be repeated.” Cagle’s, 588 F.2d at 951. Raven argues that an agreement between it and the Union made after the NLRB’s order render all but the direct dealing with employee charge moot, as the agreement ensures there is no reasonable expectation that the other transgressions will be repeated. There is no evidence of such an agreement in the record, however. As Raven as petitioner bears the burden of introducing evidence that shows an en forcement order request is moot, NLRB v. CJC Holdings, Inc., 97 F.3d 114, 116 (5th Cir.1996), the absence of evidence of the agreement in the record means its Cagle’s argument fails. Second, Raven argues that it is in substantial compliance with the orders, and that the fact that no new complaints have been filed since 1996, shows it will not violate orders in the future. However, “compliance with an order of the Board does not render the cause moot, depriving the Board of its opportunity to secure enforcement from an appropriate court.” Mexia Textile Mills Inc., 339 U.S. at 567, 70 S.Ct. 833. Accordingly, Raven’s compliance cannot prevent us from granting the NLRB’s requested order, and we conclude such an order is warranted. TV. Conclusion Because we find petitioner Raven Services’ grounds for review lack merit, its petition for review is DENIED. Cross-petitioner NLRB’s motion for an enforcement order is GRANTED in full. PETITION FOR REVIEW DENIED; ENFORCEMENT ORDER GRANTED. . International Union of Operating Engineers, Local 826, AFL-CIO and Local 351," }, { "docid": "12949132", "title": "", "text": "SENTELLE, Senior Circuit Judge: Petitioner Wilkes-Barre Hospital Company, LLC d/b/a Wilkes-Barre General Hospital (the “Hospital”) petitions for review of the National Labor Relations Board’s (“NLRB” or the “Board”) decision and order finding that the Hospital violated section 8(a)(1) and (a)(5) of the National Labor Relations Act (the “Act”), 29 U.S.C. § 158(a)(1), (5), by unilaterally ceasing the payment of longevity-based wage increases to its nurses after the expiration of the parties’ collective bargaining agreement. See generally Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991); NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). The NLRB cross-applies for enforcement of its decision and order. The Hospital argues that the language of the agreement and the parties’ shared understanding of that language demonstrate that the Hospital was not obligated to continue paying longevity-based increases upon expiration of the agreement. Relying on NLRB v. Noel Canning, — U.S.-, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), the Hospital also challenges the NLRB Regional Director’s authority to issue and prosecute the underlying complaint against the Hospital. For the reasons set forth below, we deny the Hospital’s petition for review and grant the NLRB’s cross-application for enforcement. I. The Collective Bargaining Agreements Petitioner operates an acute care facility in Wilkes-Barre, Pennsylvania. The Hospital’s full-time and part-time graduate and registered nurses are represented by the Pennsylvania Association of Staff Nurses and Allied Professionals, AFL-CIO (the “Union”). The Union is the exclusive collective bargaining representative for a bargaining unit of approximately 450 of the Hospital’s nurses. In or around May 2009, the Union negotiated with the new owner of the Hospital a memorandum of agreement that served as the parties’ collective bargaining agreement through June 30, 2009 (“2009 CBA”). The 2009 CBA incorporated by reference certain terms of the prior collective bargaining agreement between the Hospital’s former owner and the Union (“2005 CBA”), including Article 25, which provided nurses with annual across-the-board raises and longevity-based wage increases. After the 2009 CBA expired on July 1, 2009, the parties began negotiations but did not reach a successor" }, { "docid": "21613432", "title": "", "text": "September 7, 2010, the Company informed Hedger that he was being fired because he “brought an unauthorized person into the plant on August 12, 2010,” and he “did not respond truthfully to the Company’s questions regarding events on that date of which [he] w[as] fully aware.” The union filed an unfair labor practice charge with the Board. After an evidentia-ry hearing, the Administrative Law Judge (“ALJ”) ruled that Hedger’s termination violated Sections 8(a)(3) and 8(a)(1) of the Act, but that the June 4 threat and Hedger’s suspension did not violate the Act. ALJ Decision (“ALJ Dec.”) at 3-11 (Nov. 30, 2011). The Board agreed with the ALJ’s conclusion about Hedger’s termination, but otherwise reversed, finding that the June 4 threat violated Section 8(a)(1) of the Act and in light of that threat that Hedger’s suspension violated Sections 8(a)(3) and 8(a)(1). Fort Dearborn Co. (“2012 Decision”), 359 N.L.R.B. No. 11 (2012). After the appointments of two Board Members were invalidated, see NLRB v. Noel Canning, — U.S. —, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), a new three-Member Board, upon de novo review, adopted the 2012 Decision, Fort Dearborn Co. (“2014 Decision”), 361 N.L.R.B. No. 109 (2014), with one Member concurring, id. at *2 (Member Miscimarra concurring). The Company petitions for review. II. Section 8(a)(1) provides that it is “an unfair labor practice for an employer ... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7 of the Act].” 29 U.S.C, § 158(a)(1). Section 7 grants employees “the right to .self-organization, to form, join, or assist labor organizations, 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 or protection.” Id. § 157. An employer violates Section 8(a)(1) when its statement to an employee, “considering the totality of the circumstances, ... has a reasonable tendency to coerce or to interfere with those rights.” Tasty Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C. Cir. 2001); see also Dover Energy, Inc. v. NLRB, 818 F.3d 725, 729-30 (D.C." }, { "docid": "12949139", "title": "", "text": "the longevity-based increase provision “continue[d] in effect” after the agreement’s expiration. She also rejected the Hospital’s past practice argument, finding that the evidence did not establish that the parties had a longstanding practice of the Hospital’s unilateral changes going unchallenged by the Union. The Hospital also moved to dismiss on the ground that Director Walsh had been improperly appointed by- an unconstitutionally constituted Board and therefore did not have the authority to issue the complaint upon which the proceeding was held. The ALJ denied this motion, citing the record fact that a later, lawfully constituted Board had ratified the Director’s appointment. The NLRB summarily affirmed the ALJ’s rulings, findings, and conclusions, and adopted her recommended order with slight modifications. Wilkes-Barre Hosp., 362 N.L.R.B. No. 148, at *1. The Hospital timely filed the present petition for review, and the NLRB filed a cross-application for enforcement. We have jurisdiction pursuant to 29 U.S.C. § 160(e), CO. II. Before considering the merits of the Board’s order, we must address the threshold question raised by the Hospital’s motion to dismiss. The Hospital argues that all the acts of Regional Director Walsh were ultra vires, as his appointment was invalid. The NLRB had appointed him as Regional Director on March 10, 2013. In NLRB v. Noel Canning, — U.S. -, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), the Supreme Court invalidated the recess appointments of three of the Board’s five members. As a result, the Board lacked a valid quorum between January 2012 and August 2013. Therefore, argues the Hospital, Walsh had no authority to issue the complaints against it. See ManorCare of Kingston PA, LLC v. NLRB, 823 F.3d 81, 89 (D.C. Cir. 2016); Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592, 596 & n.1 (3d Cir. 2016). While the Hospital’s argument is correct in its basic assumptions, events have overtaken it since the initial invalidity of Walsh’s appointment and his unlawful issuance of complaints. After the period of invalid Board operation recognized in Noel Canning, the President made valid appointments to create a quorum on the Board. The reconstituted Board ratified" }, { "docid": "1518002", "title": "", "text": "motivate his extensive grievance solicitation program. He claimed that he acted pursuant to president Ketcham’s directive issued the day before the Union’s first organizational meeting. The A.L.J. found to the contrary and the Board affirmed. We note that as the A.L.J. considered all relevant factors and sufficiently explained his credibility resolution, we may not disturb his determination. NLRB v. Armcor Industries, Inc., 535 F.2d 239, 241 n. 3 (3d Cir. 1976). See, Altemse Construction Co. v. NLRB, 514 F.2d 8, 16 (3d Cir. 1975); NLRB v. Erie Marine, Inc., 465 F.2d 104, 106 n. 3 (3d Cir. 1972); Standard Dry Wall Products, Inc., 91 NLRB 544, 545 (1950), enforced, 188 F.2d 362 (3d Cir. 1951). We also note that though the solicitation of grievances is not in and of itself an unfair labor practice, it becomes one in violation of § 8(a)(1) when the grievance solicitation is accompanied by an express or implied promise to remedy the grievance if the Union is rejected, or if such promise otherwise serves as an inducement to vote against 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" }, { "docid": "14279030", "title": "", "text": "shows an en forcement order request is moot, NLRB v. CJC Holdings, Inc., 97 F.3d 114, 116 (5th Cir.1996), the absence of evidence of the agreement in the record means its Cagle’s argument fails. Second, Raven argues that it is in substantial compliance with the orders, and that the fact that no new complaints have been filed since 1996, shows it will not violate orders in the future. However, “compliance with an order of the Board does not render the cause moot, depriving the Board of its opportunity to secure enforcement from an appropriate court.” Mexia Textile Mills Inc., 339 U.S. at 567, 70 S.Ct. 833. Accordingly, Raven’s compliance cannot prevent us from granting the NLRB’s requested order, and we conclude such an order is warranted. TV. Conclusion Because we find petitioner Raven Services’ grounds for review lack merit, its petition for review is DENIED. Cross-petitioner NLRB’s motion for an enforcement order is GRANTED in full. PETITION FOR REVIEW DENIED; ENFORCEMENT ORDER GRANTED. . International Union of Operating Engineers, Local 826, AFL-CIO and Local 351, AFL-CIO merged effective March 1, 1997 to form Local 351. . The Ogle backpay computation method allows the employer credit for all interim earnings, while the F.W. Woolworth method excludes interim earnings in each calendar quarter to the extent the interim earnings exceed the backpay obligations for that quarter. . Raven incorrectly contends that NLRB v. Kanmak Mills, 200 F.2d 542 (3rd Cir.1952), provides the standard for determining when an amendment to an NLRB complaint should be allowed. This Third Circuit case is not controlling and in conflict with our circuit precedent. . We review NLRB mixed law-fact determinations under the substantial evidence standard. NLRB v. United Ins. Co. of America, 390 U.S. 254, 260, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968). Evidence to support a determination must be more than a mere scintilla; rather, it must be such evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). . The first request by Raven to be allowed" }, { "docid": "13631400", "title": "", "text": "95 L.Ed. 456] (1951); N.L.R.B. v. First National Bank of Pueblo, 623 F.2d 686, 691 (10th Cir.1980).” Crane Sheet Metal, Inc. v. N.L.R.B., 675 F.2d 256, 257 (10th Cir.1982). See also, 29 U.S.C. § 160(e); Interior Alterations, Inc. v. N.L.R.B., 738 F.2d 373 (10th Cir.1984). In Crane, supra, the NLRB reversed the decision of the AU. Our standard of review does not change even though the NLRB disagrees with the findings of the AU. Artra Group, Inc. v. N.L.R.B., 730 F.2d 586, 590 (10th Cir.1984). In Burk Bros. v. N.L.R.B., 117 F.2d 686 (3rd Cir.1941), cert. denied., 313 U.S. 588, 61 S.Ct. 1110, 85 L.Ed. 1543 (1941), the Court held that the duty of the NLRB to make findings cannot be delegated to an AU and if there is substantial evidence in support of the Board’s findings which are contrary to those of the AU, they cannot be set aside simply because they differ. The NLRB is empowered to draw permissible inferences from credible testimony. N.L.R.B. v. Dover Corp., 535 F.2d 1205 (10th Cir.1976), cert. denied, 429 U.S. 978, 97 S.Ct. 488, 50 L.Ed.2d 586 (1976). The issue as to what unit is appropriate for bargaining rests in the sound discretion of the NLRB. 29 U.S.C. § 159(b); Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947); Newspaper Printing Corp. v. N.L.R.B., 625 F.2d 956 (10th Cir.1980), cert. denied, 450 U.S. 911, 101 S.Ct. 1349, 67 L.Ed.2d 335 (1981). In determining whether the NLRB’s exercise of discretion is not unreasonable, arbitrary and unsupported by the evidence, we must carefully review the record as a whole. N.L.R.B. v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); Beth Israel Hosp. v. Geriatric Cen. v. N.L.R.B., 688 F.2d 697 (10th Cir.1982) (en banc), cert. dismissed, 459 U.S. 1025, 103 S.Ct. 433, 74 L.Ed.2d 522 (1982). We have done so. We hold that the Board’s conclusion that the employees hired as “extras” in a prior growing season had no reasonable expectation of reemployment in the bargaining unit at Center, Colorado, is supported by substantial" }, { "docid": "12949141", "title": "", "text": "the appointment of Walsh as Director, among many other actions. Walsh, as Director, thereafter ratified his own prior invalid actions. Because both the Board and Director Walsh ratified the actions taken during the period in which the Board lacked a valid quorum, we conclude that the Hospital’s motion was properly denied. In general, “[r]atifieation occurs when a principal sanctions the prior actions of its purported agent.” Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203, 212 (D.C. Cir. 1998), superseded by statute on other grounds, Federal Vacancies Reform Act of 1998, Pub. L. No. 105-277, 122 Stat. 2681 (1998), as recognized in S.W. Gen., Inc. v. NLRB, 796 F.3d 67, 70-71 (D.C. Cir. 2015), aff'd — U.S. -, 137 S.Ct. 929, 197 L.Ed.2d 263 (2017). Our precedents establish that ratification can remedy a defect arising from the decision of “an improperly appointed official when.... a properly appointed official has the power to conduct an independent evaluation of the merits and does so.” See Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 796 F.3d 111, 117-21, 124 (D.C. Cir. 2015) (citing Doolin Sec., 139 F.3d at 213-14; FEC v. Legi-Tech, 75 F.3d 704, 708-09 (D.C. Cir. 1996)). Relevant to this case, we previously suggested that “a properly constituted Board” could ratify the decisions of an improperly constituted Board. See Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 476 (D.C. Cir. 2009); see also Allied Aviation Serv. Co. of N.J. v. NLRB, 854 F.3d 55, 64-65 (D.C. Cir. 2017). On July 18, 2014, after the Supreme Court’s decision in Noel Canning, all five members of a properly constituted Board adopted and ratified “all administrative, personnel, and procurement matters approved by the Board or taken by or on behalf of the Board between January 4, 2012, and August 5, 2013,” inclusive. Wilkes-Barre Hosp., 362 N.L.R.B. No. 148, at *5. The Board expressly authorized Director Walsh’s appointment, and Director Walsh affirmed and ratified his own actions in a separate order on July 30, 2014. After considering relevant materials, the properly constituted Board expressly ratified its appointment" } ]

[ { "docid": "22421267", "title": "", "text": "it would follow that a verdict could never be directed in favor of a party alleging fraud in any case in which the falsity of a representation was in issue. Yet, verdicts have frequently been directed in such circumstances. Cf. Bella S. S. Co. v. Insurance Co. of North America, 5 F. 2d 570; Aetna Life Ins. Co. v. Bolding, 57 F. 2d 626; Aetna Life Ins. Co. v. Perron, 69 F. 2d 401, certiorari denied, 293 U. S. 570; Columbian National Life Ins. Co. v. Rodgers, 93 F. 2d 740. Claflin v. Commonwealth Ins. Co., 110 U. S. 81, 95; Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613, 622; cf. Agnew v. United States, 165 U. S. 36, 53; Stipcich v. Metropolitan Life Ins. Co., 277 U. S. 311, 316-317, The denial of Pence’s various claims is in no way inconsistent with the truth of his admissions here involved, since his claims were allowable only in the event of actual physical disability at the time. That a man is not presently disabled in no way militates against the truth of statements that he had previously consulted a physician, etc. Wilkinson v. Kitchin, 1 Lord Raymond 89; Decker v. Poper, 1 Selwyn, Nisi Prius (13th ed.) 91; Hendrick v. Lindsay, 93 U. S. 143; Arthur v. Morgan, 112 U. S. 495; Anderson County Commisdoners v. Beal, 113 U. S. 227, 241-242; Chesapeake & Ohio Ry. Co. v. Martin, 283 U. S. 209, 216. Mr. Justice Murphy, dissenting: In view of the high value and importance attached by custom and tradition to the right of jury trial as a feature of our federal jurisprudence, and the significant emphasis provided by the federal and state constitutions, scrupulous care should be exercised by courts and judges to avoid rulings, on motions for the direction of a verdict, which in effect wrongfully deprive a litigant of the cherished right. On such a motion our function is not to evaluate the evidence for the purpose of determining whether fraud has been committed. I am unable to agree with the opinion of the Court," } ]

[ { "docid": "7934358", "title": "", "text": "the time the Wabash car arrived in the station. No statement was made by the conductor bearing upon the condition at any later moment. The accident occurred at about 8:30 A. M. As to the porter, the jury may have considered it incredible that he should have walked four times along the narrow strip of rough wet ground between tracks Nos. 6 and 7 instead of going to the baggage room upon the covered cement platform which was to the south of track No. 7, in order to fulfill his duties at the station, and that with his towels and supplies he should have used “both hands in getting up in the car.” The credibility of these and other witnesses was a question for the jury and it was at liberty to disregard part or all of the testimony that this grabiron was in perfect condition immediately prior to the accident. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Chesapeake & Ohio R. Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983; DeHaan v. Winter, 265 Mich. 101, 251 N.W. 391. While there seems to have been an agreement that a part of one of the bolts which had been newly broken or sheared off was found at the scene of the accident, in the light of the testimony of appellee’s witnesses, the jury evidently inferred that the bolt had been broken some time before and that the part discovered merely failed to drop off out of its socket until the car was placed where the accident occurred, or thereafter. Where there is substantial evidence sufficient to take the case to the jury, no amount of contradictory evidence will authorize a directed verdict. Grand Trunk Western R. Co. v. Collins, 6 Cir., 65 F.2d 875; Great Atlantic & Pacific Tea Co. v. Chapman, 6 Cir., 72 F.2d 112. Difficult as- the application of a general test may be in individual cases it is helpful to keep in mind the distinction that the question presented is not one as to the weight of the" }, { "docid": "12845494", "title": "", "text": "deceased or examined the wound or the condition within the skull. His testimony was entirely hypothetical and devoid of probative value. On these facts, we think that the trial judge properly directed a verdict for defendant on the issue of suicide. Home Life Ins. Co. v. Moon, 4 Cir., 110 F.2d 184; Jefferson Standard Life Ins. Co. v. Clemmer, 4 Cir., 79 F.2d 724, 103 A.L.R. 171. This result follows not only because of the views we entertain with respect to the nature of the presumption against suicide and the burden of proof in such cases, but because the evidence taken as a whole establishes suicide so clearly as to leave no room to doubt what the fact is. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720. This is the test in the federal courts on motion to direct a verdict, and not the incidence of the burden of proof or the nature of the presumption against self destruction. In the federal courts, verdict may be directed in a proper case in favor even of the party upon whom the burden of proof rests. A. B. Small Co. v. Lamborn & Co., 267 U.S. 248, 254, 45 S.Ct. 300, 69 L.Ed. 597. And even if the presumption against suicide be accorded the weight of evidence, it must be considered along with the other evidence in the case; and, if upon the evidence viewed as a whole, there is no room for doubt as to the fact in issue, verdict must be directed. A. B. Small & Co. v. Lamborn & Co., supra; Gunning v. Cooley, supra. Plaintiff points to the fact that in a companion case in the North Carolina state courts, the evidence as to suicide was held for the jury. Gorham v. Pacific Mutual Life Ins. Co., 214 N.C. 526, 200 S.E. 5, rehearing 215 N.C. 195, 1 S.E.2d 569. It appears, however, that the Supreme Court of North Carolina did not pass upon the sufficiency of the evidence, but held that, this point having been conceded in the trial court, the defendant" }, { "docid": "10319964", "title": "", "text": "physical facts, Whittington v. Mayberry, 10 Cir. 190 F.2d 703. The doctrine should be applied only where the evidence on which plaintiff relies is clearly contrary to some immutable law of physics or is hopelessly in conflict with one or more established and uncontroverted physical facts, Travelers Indemnity Company v. Parkersburg Iron & Steel Company, 4 Cir. 70 F.2d 63; Jarman v. Philadelphia-Detroit Lines, 4 Cir. 131 F.2d 728; Kansas City Public Service Company v. Shephard, 10 Cir. 184 F.2d 945, and its use should be restricted to those situations in which the testimony of the witnesses relied upon was virtually impossible on the uncontradicted physical facts, Granat v. Schoepski, 9 Cir. 272 F.2d 814. Libellant’s witnesses are wholly disinterested and, ordinarily, their testimony should not be disregarded, Chesapeake & Ohio Railroad Company v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983; Quock Ting v. United States, 140 U.S. 417, 11 S.Ct. 733, 35 L.Ed. 501; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; unless it has to give way in the face of overpowering physical facts, or other evidence which simply makes it incredible or inherently improbable, Cf. Geigy Chemical Corporation v. Allen, 5 Cir. 224 F.2d 110. The Court is of the opinion that this case cries out for the application of the physical facts doctrine and will proceed to do so without the imputation of false testimony upon the part of any of the witnesses. It is a matter of common knowledge to those familiar with stevedoring operations in the Port of New Orleans that quite frequently each day’s labor will find the individual longshoreman on a different vessel. It is also a matter of common knowledge that most of the dry cargo carriers calling at this port are very similar in naval architectural construction and that the winch systems of each may vary from vessel to vessel. One can hardly expect an elephantine memory from semi-literate men of labor. Lapses of memory and confusion may be expected, especially in a case tried three years after the occurrence in" }, { "docid": "1816989", "title": "", "text": "some evidence, he may properly exercise his discretion in granting a new trial. Marsh v. Illinois Central R. Co., 5 Cir., 175 F.2d 498, 500; Pennsylvania Thresherman & Farmers’ Mutual Casualty Ins. Co. v. Crapet, 5 Cir., 199 F.2d 850, 853; Snead v. New York Central R. Co., 4 Cir., 216 F.2d 169, 172, 175; 5 Moore’s Federal Practice, 2nd ed., Para. 50.03. Various formulas for ruling on a motipn for directed verdict appear in the opinions of the Supreme Court, and one of the later cases has said .that the matter is not greatly aided by substituting one general formula for another. Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 87 L.Ed. 1458. The opinion in that case, along with the dissenting opinion of Mr. Justice Black, demonstrates the necessity of constant vigilance on the part of the lower federal courts lest the constitutional guaranty of jury trial be invaded. One of the latest expressions of the Supreme Court is simply that: “The requirement is for probative facts capable of supporting, with reason, the conclusion expressed in the verdict.” Myers v. Reading Co., 331 U.S. 477, 485, 67 S.Ct. 1334, 1339, 91 L.Ed. 1615. One thing on which all of the cases seem to agree is that it is the jury’s province and not that of the judge to pass upon the credibility of the witnesses, except perhaps in an extreme case where the testimony is demonstrably false. Ewing’s Lessee v. Burnet, 11 Pet. 41, 51, 9 L.Ed. 624; Baltimore & Ohio R. Co. v. Groeger, 266 U.S. 521, 524, 45 S.Ct. 169, 69 L.Ed. 419; Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Brady v. Southern R. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 88 L.Ed. 239. The rule is thus stated in the last cited case: “When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding by non-suit, directed verdict or otherwise in accordance with the applicable practice" }, { "docid": "12845493", "title": "", "text": "of the wound that it was a contact wound, i. e., that the pistol was held against the head when it was fired. This was shown by the absence of branding or burning of the skin surrounding the wound, the presence of unexploded particles of powder in the brain where the bullet was found, and injury to the skull which could only be explained by the explosion within the skull of gases injected at the time of the shot. While there would be an absence of branding in the case of a shot made twelve inches or more from the head as well as in the' case of one made with the muzzle of the pistol pressed against the head, the presence of unexploded particles of powder within the wound and the injury to the skull from exploding gases could only be explained on the theory of a contact shot. The expert witness \" relied on by plaintiff was not present at the autopsy and had never so much as seen the body of the deceased or examined the wound or the condition within the skull. His testimony was entirely hypothetical and devoid of probative value. On these facts, we think that the trial judge properly directed a verdict for defendant on the issue of suicide. Home Life Ins. Co. v. Moon, 4 Cir., 110 F.2d 184; Jefferson Standard Life Ins. Co. v. Clemmer, 4 Cir., 79 F.2d 724, 103 A.L.R. 171. This result follows not only because of the views we entertain with respect to the nature of the presumption against suicide and the burden of proof in such cases, but because the evidence taken as a whole establishes suicide so clearly as to leave no room to doubt what the fact is. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720. This is the test in the federal courts on motion to direct a verdict, and not the incidence of the burden of proof or the nature of the presumption against self destruction. In the federal courts, verdict may be directed in a proper" }, { "docid": "11298732", "title": "", "text": "is. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720. Verdict may be set aside and new trial granted, when the verdict is contrary to the clear weight of the evidence, or whenever in the exercise of a sound discretion the trial judge thinks this action necessary to prevent a miscarriage of justice.’ [Inside quote from Garrison v. U. S., 4 Cir., 62 F.2d 41, 42] “ * * * if the judge is of opinion that the verdict of the jury was against the weight of the evidence or based on evidence that was false, he should set it aside and grant a new trial, even though direction of a verdict or judgment n. o. v. was not warranted.” Disposition of this appeal can take any of three alternative courses. We can either (1) affirm the trial court’s action in granting judgment for the defendants n. o. v., (2) remand the case for a new trial, in accordance with the alternative order of the District Court, or (3) hold that the alternative order granting the new trial was an abuse of discretion and reinstate the jury verdicts. In reviewing the validity of the judgment n. o. v. granted by the District Judge, the same Montgomery Ward case, cited above, has this to say: “The motion for judgment cannot be granted unless, as a matter of law, the opponent of the Movant (here appellant) failed to make a case, and, therefore a verdict in Movant’s favor should have been directed.” Montgomery Ward & Co. v. Duncan, supra, 311 U.S. at page 251, 61 S.Ct. at page 194. Another Circuit Court has said: “The rule is well established that a motion for a judgment notwithstanding the verdict presents only a question of law as to whether, when all the evidence is considered together with all reasonable inferences most favorable to plaintiff, there is a total failure or lack of evidence to prove any necessary element of plaintiff’s case.” O’Day v. Chicago River & Indiana Ry. Co., 7 Cir., 216 F.2d 79, 82. See also: Snead v. New York" }, { "docid": "12750511", "title": "", "text": "the truck and going at 30 miles per hour, so as to strike the truck with its rear fender rather than its front. The defendant’s version of the accident was then stated in the form of a hypothetical question to the expert, who testified that this account of the accident was consistent with the natural laws of physics. This testimony in our opinion did not demonstrate that the plaintiff’s testimony was so incredible as to require a directed verdict. We recognize the rale that in federal courts a verdict may be directed against a party although some evidence may have been adduced on his behalf, if the evidence, taken as a whole, is so overwhelmingly against him that reasonable men could not possibly find a verdict in his favor. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 216; Pence v. United States, 316 U.S. 332, 62 . S.Ct. 1080; 86 L.Ed. 1510 ; Gorham v. Mu tual Benefit Health &' Accident Ass’n, 4 Cir., 114 F.2d 97; Southern R. Co. v. Bell, 4 Cir., 114 F.2d 341; Jefferson Standard Life Ins. Co. v. Clemmer, 4 Cir., 79 F.2d 724. Moreover, evidence may be completely disregarded as without probative force if it is manifestly incredible when tested by accepted physical laws in the light of incontrovertible facts. The rule is thus stated in Travelers’ Indemnity Co. v. Parkersburg Iron & S. Co., 4 Cir., 70 F.2d 63, 64, 65: “ * * * The rule is well settled, of course, that evidence contrary to established physical facts has no probative value. U. S. v. Diehl [4 Cir.], 62 F.2d 343; Atlantic Coast Line R. Co. v. McLeod [4 Cir.], 11 F.2d 22. But to justify the ignoring of evidence under this rule the evidence ignored must be utterly at variance with well-established and universally recognized physical laws and therefore inherently impossible. See Wasiota & B. M. R. Co. v. Hall, 167 Ky. 819, 181 S.W. 629; Wolf v. City R. Co., 50 Or. 64, 85 P. 620," }, { "docid": "22424398", "title": "", "text": "question and that the lower federal courts are not in agreement upon it. Dick v. New York Life Ins. Co., 1959, 359 U.S. 437, 444-445, 79 S.Ct. 921, 3 L.Ed.2d 935, and cases cited. See also 5 Moore’s Federal Practice (2 Ed. 1951) § 38.10. Although this court, prior to Dick, apparently held, in seeming opposition to some other circuits, that the state standard of sufficiency of the evidence is to be applied, in 3 recent cases, where the state and federal standards were regarded as substantially alike and the parties assumed the state standard was applicable, this basic question, in line with Dick’s example, specifically has been left undecided. So here, because the parties have not raised the point, and because the Minnesota standard that a jury verdict “will not be set aside unless it is manifestly and palpably contrary to the evidence as a whole”, Haugen v. Dick Thayer Motor Co., 253 Minn. 199, 214, 91 N.W.2d 585, 594; Barnes v. Northwest Airlines, Inc., 233 Minn. 410, 433, 47 N.W.2d 180, 193, and that it will be sustained “if it is possible to do so on any reasonable theory of the evidence,” Bush v. Havir, 253 Minn. 318, 320, 91 N.W.2d 784, 786, or “if the evidence reasonably or fairly tends to sustain it,” Delyea v. Goossen, 226 Minn. 91, 99, 32 N.W.2d 179, 184, or if “there is any competent evidence reasonably tending to sustain the verdict,” Solosky v. J. A. Johnson Co., 223 Minn. 390, 392, 27 N.W.2d 282, 283, does not appear to us to be unlike the federal standard that there be “substantial evidence,” Terminal R. Ass’n of St. Louis v. Howell, 8 Cir., 165 F.2d 135, 138; Smails v. O’Malley, 8 Cir., 127 F.2d 410, 412; Love v. United States, 8 Cir., 141 F.2d 981, 982; Noble v. United States, 8 Cir., 98 F.2d 441, 442; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Brady v. Southern Ry. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 88 L.Ed. 239, or a “reasonable basis in fact” for the jury’s conclusion," }, { "docid": "11155754", "title": "", "text": "him, even though he may not believe his evidence or may think that the weight of the evidence is on the other side; for, under the constitutional guaranty of trial by jury, it is for the jury to weigh the evidence and pass upon its credibility. He may, however, set aside a verdict supported by substantial evidence where in his opinion it is contrary to the clear weight of the evidence, or is based upon evidence which is false; for, even though the evidence be sufficient to preclude the direction of a verdict, it is still his duty to exercise his power over the proceedings before him to prevent a miscarriage of justice. See Felton v. Spiro, 6 Cir., 78 F. 576. Verdict can be directed only where there is no substantial evidence to support recovery by the party against whom it is directed or where the evidence is all against him or so overwhelmingly so as to leave no room to doubt what the fact is. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720. Verdict may be set aside and new trial granted, when the verdict is contrary to the clear weight of the evidence, or whenever in the exercise of a sound discretion the trial judge thinks this action necessary to prevent a miscarriage of justice.” See also Hawkins v. Sims, 4 Cir., 137 F.2d 66; Mt. Adams, etc., Ry. Co. v. Lowery, 5 Cir., 74 F. 463; Bain v. United States, 6 Cir., 262 F. 664; General American Life Ins. Co. v. Central Nat. Bank 6 Cir., 136 F.2d 821; Applebaum v. United States, 7 Cir., 274 F. 43; Adams v. United States, 7 Cir., 116 F.2d 199; Childs v. Radzevich, 78 U.S.App.D.C. 235, 139 F.2d 374; Pruitt v. Hardware Dealers Mut. Fire Ins. Co., 5 Cir., 112 F.2d 140; Daffinrud v. United States, 7 Cir., 145 F.2d 724. Moreover, the trial judge in ruling upon a motion for a new trial on the ground that a verdict is contrary to the weight of the evidence, is called upon to exercise a substantial" }, { "docid": "12750510", "title": "", "text": "its brakes and turned it sharply to the left so that the rear end of the car collided with the right front fender of the truck and then swung around to the left, and the car, facing east, moved backwards in a westerly direction for a distance of 46 feet. The damage to the vehicles above described was shown by photographs ; the weight of the car was given at 3,000 pounds and that of the truck and trailer from 23,000 to 25,000 pounds, and it was shown that the truck was not pushed laterally to the northward at all and came to a dead stop with its front wheels and bumper just off the east side of the pavement. In answer to the question the expert testified that these facts would not be consistent with the laws of physics, because there was no lateral movement of the truck in consequence of the collision, and because the direction of the car could not have been changed, when it was only 10 or 12 feet from the truck and going at 30 miles per hour, so as to strike the truck with its rear fender rather than its front. The defendant’s version of the accident was then stated in the form of a hypothetical question to the expert, who testified that this account of the accident was consistent with the natural laws of physics. This testimony in our opinion did not demonstrate that the plaintiff’s testimony was so incredible as to require a directed verdict. We recognize the rale that in federal courts a verdict may be directed against a party although some evidence may have been adduced on his behalf, if the evidence, taken as a whole, is so overwhelmingly against him that reasonable men could not possibly find a verdict in his favor. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 216; Pence v. United States, 316 U.S. 332, 62 . S.Ct. 1080; 86 L.Ed. 1510 ; Gorham v. Mu tual Benefit Health &' Accident" }, { "docid": "22751401", "title": "", "text": "328 F.2d 666; White v. New York Life Ins. Co., 5 Cir., 1944, 145 F.2d 504. . See, e. g., Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720 (1930) (evidence must be “overwhelmingly on one side”) ; Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943) (“mere speculation” not allowable); Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943) (directed verdict proper only where “there can be but one reasonable conclusion”); Muldrow v. Daly, 1964, 117 U.S.App.D.C. 318, 329 F.2d 886 (“no reasonable man could reach” a contrary verdict); Magnat Corporation v. B&B Electroplating Co., 1 Cir., 1966, 358 F.2d 794 (“lack of substantial evidence” necessary to direct a verdict); Woods v. National Life and Accident Insurance Company, 3 Cir., 1965, 347 F. 2d 760 (evidence must permit only “one reasonable conclusion”); Crosby v. Meredith, 4 Cir., 1962, 300 F.2d 323 (“substantial evidence” required); Wells v. Warren Company, 5 Cir., 1964, 328 F.2d 666 (“conflict in substantial evidence” necessary); Remington Arms Company, Inc. v. Wilkins, 5 Cir., 1967, 387 F.2d 48 (there must be “a rational basis in the record”); Ford Motor Company v. Zahn, 8 Cir., 1959, 265 F.2d 729 (“all or substantially all of the evidence” must be on one side); McCollum v. Smith, 9 Cir., 1964, 339 F.2d 348 (question is whether evidence “would rationally support a verdict” for the non-moving party); Champion Home Builders v. Shumate, 10 Cir., 1967, 388 F.2d 806 (“evidence must all be one way”); Hyman and Newhouse, Standards for Preferred Freedoms: Beyond the First, 60 Nw.L.Rev. 1, 15 (1965) (no submission to jury unless “substantial, or high probability of the plaintiff’s proposition, or that there be a substantially even chance of its truth”). . The Court should consider all of the evidence„and not just that eviljacrwKicli supports _thg_nnnjnave£s case. The Supreme Court in Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L. Ed. 497 (1949), an FELA case, held that all the evidence should not be considered in a motion for a directed verdict. However," }, { "docid": "22269713", "title": "", "text": "verdicts for the plaintiffs could properly be based. For the decision of that question, we must assume as established all the facts that the evidence supporting the plaintiffs’ claims reasonably tends to prove and that there should be drawn in the plaintiffs’ favor all the inferences fairly deducible from such facts. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 233, 74 L.Ed. 720; Lumbra v. United States, 290 U.S. 551, 553, 54 S.Ct. 272, 273, 78 L.Ed. 492; Svenson v. Mutual Life Ins. Co. of New York (C.C.A.8) 87 F.(2d) 441, 442. We must also give effect to the rule that issues that depend upon the credibility of witnesses, and the effect or weight of evidence are to be decided by the jury. Gunning v. Cooley, supra, 281 U.S. 90, at page 94, 50 S.Ct. 231, 233, 74 L.Ed. 720; Svenson v. Mutual Life Ins. Co. of New York, supra, 87 F.(2d) 441, at page 443. The literal application of these rules would require an ■affirmance of the judgments, since two persons who were present at the happening of the accident have testified directly that the defendant’s truck struck the Daniel car in the east lane of the pavement. But the defendant contends that the evidence which he introduced as to the location of the truck after the accident, about which there is no serious dispute, and the evidence as to the track of the dual wheel of his truck upon the west shoulder of the highway, completely destroyed the probative value of the plaintiffs’ evidence, because their evidence was, thereafter, opposed to physical facts which had been conclusively established. The rule that oral evidence which is opposed to undisputed physical facts is not substantial evidence — which is another way of saying that neither court nor jury is permitted to believe that which is obviously untrue — is well settled. Missouri, K. & T. Ry. Co. v. Collier (C.C.A.8) 157 F. 347, 353, certiorari denied 209 U.S. 545, 28 S.Ct. 571, 52 L.Ed. 920; St. Louis Southwestern Ry. Co. v. Britton (C.C.A.8) 190 F. 316; American Car" }, { "docid": "8792809", "title": "", "text": "liability for the excess freight we have considered above. It seems not to be doubted that plaintiff has never had any intention of attacking its own figures; at the very least there has certainly been no attempt, or even suggestion of an attempt, to \"condescend upon particulars,” as the procedure requires. Wallingford v. Directors, etc., of Mutual Soc., 5 App.Cas. 685, 704, quoted in Mr. Justice Shientag’s authoritative monograph, Summary Judgment, 1941, 78, 4 Fordham L.Rev. 186, 207, and in the Engl case, supra, 339 F.2d at page 473. Here the analogy suggested in Sartor v. Arkansas Natural Gas Corporation, 321 U.S. 620, 624, 64 S.Ct. 724, of evidence which “would require a directed verdict for the moving party” is useful. But care should he taken to make the analogy as exact as circumstances permit; the ruling is to he made •on the record the parties have actually presented, not on one potentially possible. Hence the case here is as though defendant had offered plaintiffs admissions, and plaintiff had then rested, with no contradiction or rebuttal of any kind, and had made its own motion for a directed verdict or peremptory instruction. And the ruling in Pence v. United States, 316 U.S. 332, 340, 62 S.Ct. 1080, 1084, 86 L.Ed. 1510, would seem applicable : “No evidence in the case served in any way to contradict, qualify, or explain Pence’s admissions. We are of opinion that, in the absence of any such evidence, his admissions established so overwhelming a case in favor of the Government as to require the direction of a verdict in its favor.” See also Chesapeake & O. R. Co. v. Martin, 283 U.S. 209, 216, 51 S.Ct. 453, 75 L.Ed. 983; Brady v. Southern R. Co., 320 U.S. 476, 480, 64 S.Ct. 232, 88 L.Ed. 239; Galloway v. United States, 319 U.S. 372, 396, 63 S.Ct. 1077, 87 L.Ed. 1458; Hull v. Littauer, 162 N.Y. 569, 572, 57 N.E. 102; Princess Furnace Co. v. Virginia-Carolina Chemical Co., 4 Cir., 215 F. 329. Judgment affirmed. Since there is no contention or suggestion that the market price was" }, { "docid": "13235204", "title": "", "text": "established from which a presumption or inference logically flows or legally arises, whether such basic facts are established by circumstantial evidence or by direct testimony, it is the province of the jury to deduce the presumption or inference.” See Adamant Stone & Roofing Co. v. Vaughn, 7 Tenn.App. 170; Sommer v. Yakima Motor Coach Co., 174 Wash. 638, 26 P.(2d) 92; Chesapeake & O. R. Co. v. Ware, 122 Va. 246, 95 S.E. 183; Wigmore on Evidence, § 41. It is well established that, if there is any evidence upon which a jury could properly find a verdict for the party producing it, a motion for a directed verdict by the opposing party should be denied. In the leading case of Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 233, 74 L. Ed. 720, the court said: “Issues that depend on the credibility of witnesses, and the effect or weight of evidence, are to be ■decided by the jury. And in determining a motion of either party for a peremptory instruction, the court assumes that the evidence for the opposing party proves ali that it reasonably may be found sufficient to establish, and that from such facts there should be drawn in favor of the latter all the inferences that fairly are deducible from them. [Cases cited.] Where uncertainty as to the existence of negligence arises from a conflict in the testimony or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury. [Case cited.]” In Brownlee v. Mutual Ben. Health & Accident Ass’n, 29 F.(2d) 71, 76, this court said: “A motion for a directed verdict, like a motion for a nonsuit, is in the nature of a demurrer to the evidence. In its determination the evidence upon the p'art of plaintiff must be accepted as true, and every proper inference or deduction therefrom taken most strongly in favor of the plaintiff. “As said by Mr. Justice Harlan in Travelers’ Ins. Co. v. Randolph (C.C.A.) 78 F." }, { "docid": "6121379", "title": "", "text": "required by statute, and whether or not Mandro was maintaining such a lookout as is required of all drivers upon the highways. At the close of the plaintiff’s case, the trial judge granted defendants’ motion for a directed verdict, expressly refusing to find one way or the other on the issue of defendants’ primary negligence, and basing his ruling solely on a finding that, as a matter of law, plaintiff’s decedent, Mandro, was contributorily negligent. The question here presented, then, is well defined: Was this a proper case for a directed verdict on the issue of the following driver’s contributory negligence? At the outset it is well to recall the settled rule that in considering a motion for a directed verdict the evidence must be considered in its aspect most fav orable to the party against whom the motion is made, with every fair and reasonable inference which the evidence justifies. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Myers v. American Well Works, 4 Cir., 114 F.2d 252, 253, certiorari denied 313 U.S. 563, 61 S.Ct. 842, 85 L.Ed. 1522; Harris v. United States, 4 Cir., 70 F.2d 889, 890. The evidence offered by the plaintiff to establish his case was admittedly scant, consisting principally of the testimony of a Miss Bullock, the only eyewitness to the accident other than the actual participants. She testified positively that the Vibbert car came to “a sudden stop” on the highway, and that Mrs. Vibbert gave no hand signal of her intention to stop. It was Miss Bullock’s testimony that tended to establish, also, the distance between the car and the motorcycle as having been about 16 feet. Her testimony is somewhat weakened when it is considered that she was some 350 feet from the collision point, and was almost directly behind the vehicles involved. However, it cannot be said that her testimony was thus so discredited that the jury would not have been justified in finding the facts as she related them. There was also evidence of statements made by Mrs. Vibbert immediately after the accident;" }, { "docid": "16155534", "title": "", "text": "sort of a highway of a highly dangerous character; and what was said by Judge Woods of this court in United States Director General of Railroads v. Zan-zinger, 4 Cir., 269 F. 552, quoted with approval in Farley v. Norfolk & W. R. Co., 4 Cir., 14 F.2d 93, 96, is pertinent here. Said he: “The question whether a traveler should stop to listen and look, how intently and how constantly, or how often he should listen and look in the exercise of the prudence of a reasonably careful man, depends upon all the circumstances; * * *. Whether a traveler on the highway has looked and listened as a man of ordinary prudence would is generally a question for the jury.” One of the arguments frequently made in cases of this sort is that the physical facts support the contention of the party moving for the directed verdict and the court is asked to ignore the other testimony in the case because it is argued that the physical facts require that the verdict be directed. Where, however, the physical facts relied on are such matters as speed, vision, ability to stop, etc., which depend on testimony of witnesses, it is clear that what the court is asked to do is to invade the province of the jury and decide the ultimate issues of fact. That these may involve scientific knowledge or the application of the principles of physics or mathematics does not make them any less issues of fact or withdraw them from the province of the jury, as triers of the facts. As said by this court in Travelers’ Indemnity Co. v. Parkersburg Iron & Steel Co., 4 Cir., 70 F.2d 63, 64-65: “The rule is well settled, of oourse, that evidence contrary to established physical facts has no probative value. U. S. v. Diehl, 4 Cir., 62 F.2d 343; Atlantic Coast Line R. Co. v. McLeod, 4 Cir., 11 F.2d 22. But to justify the ignoring of evidence under this rule the evidence ignored must be utterly at variance with well-established and universally recognized physical laws and" }, { "docid": "12750512", "title": "", "text": "Ass’n, 4 Cir., 114 F.2d 97; Southern R. Co. v. Bell, 4 Cir., 114 F.2d 341; Jefferson Standard Life Ins. Co. v. Clemmer, 4 Cir., 79 F.2d 724. Moreover, evidence may be completely disregarded as without probative force if it is manifestly incredible when tested by accepted physical laws in the light of incontrovertible facts. The rule is thus stated in Travelers’ Indemnity Co. v. Parkersburg Iron & S. Co., 4 Cir., 70 F.2d 63, 64, 65: “ * * * The rule is well settled, of course, that evidence contrary to established physical facts has no probative value. U. S. v. Diehl [4 Cir.], 62 F.2d 343; Atlantic Coast Line R. Co. v. McLeod [4 Cir.], 11 F.2d 22. But to justify the ignoring of evidence under this rule the evidence ignored must be utterly at variance with well-established and universally recognized physical laws and therefore inherently impossible. See Wasiota & B. M. R. Co. v. Hall, 167 Ky. 819, 181 S.W. 629; Wolf v. City R. Co., 50 Or. 64, 85 P. 620, 91 P. 460, 15 Ann.Cas. 1181. The rule means merely that courts are not required to stultify themselves by giving serious consideration to what every man knows to be untrue. It does not mean that they must determine for themselves, from the testimony of experts or otherwise, the truths of science which may be involved in cases before them, and ignore testimony that does not coincide with their conclusions. Questions of fact are questions for the jury; and they do not become questions for the court merely because their solution may require scientific knowledge or expert opinion.” But it seems quite obvious that the circumstances of the accident, as related by the plaintiff’s witnesses, were not so fixed and certain as to permit precise and incontrovertible calculations to be made as to the effect of the speed, or change of direction of the car and truck or the force of the collision, much less to accord absolute verity to an expert opinion based thereon. It is certain that after the accident, each vehicle was on" }, { "docid": "15972402", "title": "", "text": "a verdict for the plaintiff, upon whom the burden of proof is imposed. A mere scintilla of evidence, or evidence of no probative value, is not enough to require the submission of an issue to the jury. Where the evidence is conflicting or contradictory, the court does not attempt to judge its weight or to judge the credibility of the witnesses giving such testimony. In considering a motion by the defendant for a directed verdict the Court assumes the truth of the evidence in support of the facts essential to the plaintiff’s claim together with all the inferences that justifiably could be drawn therefrom. Where such evidence on an issue is so overwhelmingly against the plaintiff’s contention as to leave no room to doubt that a fact is not what the plaintiff claims it to be and such fact is essential to plaintiff’s cause of action, the Court is authorized as a matter of law to direct a verdict for the defendant. But where uncertainty as to the facts arises from a conflict in the testimony, or because fair-minded men will honestly draw different conclusions from undisputed facts, the question is not one of law but of fact to be settled by the jury. Gunning v. Cooley, 281 U.S. 90, 92-94, 50 S.Ct. 231, 74 L.Ed. 720; Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520; Moore v. Chesapeake & Ohio Ry. Co., 340 U.S. 573, 71 S.Ct. 428, 95 L.Ed. 547; Hutchins v. Akron, Canton & Youngstown R. Co., 6 Cir., 162 F.2d 189, 192. The Ohio law, which is applicable to this case, is settled to that effect. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E. 246; Wilkeson, Adm’x v. Erskine & Son, Inc., 145 Ohio St. 218, 61 N.E.2d 201. In order to have her case submitted to the jury appellant had the burden of introducing evidence of probative value which would tend to show that the steering wheel came off the steering shaft because of the negligent construction or assembly of the wheel" }, { "docid": "12592493", "title": "", "text": "truism deeply rooted in juridic experience that where the evidence is in conflict, the jury’s opportunity to observe the witnesses’ demeanor is especially important in judging credibility. These general principles demonstrate that it is not ordinarily within the appellate court’s province to review a jury’s resolution of issues of credibility. The trial judge, who like the jury had the. advantage of observing the witnesses as they testified, is vested with broader power. Even when there has been substantial evidence which required him to submit the case to the jury, he may in his discretion set the verdict aside and grant a new trial if he thinks the verdict is against the weight of the evidence, and it is his duty to do so if he is convinced that permitting the verdict to stand would result in a miscar riage of justice. The power exists in both civil and criminal cases.' The appellant insists, however, that this is an exceptional case, demanding appellate correction, because of the inherently incredible nature of the girl’s story. We find no reason to depart from the general rule. This is not a proper case for the application of the “physical facts doctrine” which this court has recognized in the past. Jarman v. Philadelphia-Detroit Lines, Inc., 131 F.2d 728 (4 Cir. 1942); Travelers’ Indemnity Co. v. Parkersburg Iron & Steel Co., 70 F.2d 63 (4 Cir. 1934). In Travelers, Judge Parker stated that doctrine as follows: The rule is well settled, of course, that evidence contrary to established physical facts has no probative value. * * But to justify the ignoring of evidence under this rule the evidence ignored must be utterly at variance with well-established and universally recognized physical laws and therefore inherently impossible * * *. The rule means merely that courts are not required to stultify themselves by giving serious consideration to what every man knows to be untrue. 70 F. 2d at 64-65. Manifestly the version of the prosecutrix was not inherently impossible or against some law of physical nature. We recognize that the features of the case which the appellant emphasizes" }, { "docid": "16155535", "title": "", "text": "directed. Where, however, the physical facts relied on are such matters as speed, vision, ability to stop, etc., which depend on testimony of witnesses, it is clear that what the court is asked to do is to invade the province of the jury and decide the ultimate issues of fact. That these may involve scientific knowledge or the application of the principles of physics or mathematics does not make them any less issues of fact or withdraw them from the province of the jury, as triers of the facts. As said by this court in Travelers’ Indemnity Co. v. Parkersburg Iron & Steel Co., 4 Cir., 70 F.2d 63, 64-65: “The rule is well settled, of oourse, that evidence contrary to established physical facts has no probative value. U. S. v. Diehl, 4 Cir., 62 F.2d 343; Atlantic Coast Line R. Co. v. McLeod, 4 Cir., 11 F.2d 22. But to justify the ignoring of evidence under this rule the evidence ignored must be utterly at variance with well-established and universally recognized physical laws and therefore inherently impossible. See Wasiota & B. M. R. Co. v. Hall, 167 Ky. 819, 181 S.W. 629; Wolf v. City R. Co., 50 Or. 64, 85 P. 620, 91 P. 460, 15 Ann.Cas. 1181. The rule means merely that courts are not required to stultify themselves by giving serious consideration to what every man knows to be untrue. It does not mean that they must determine for themselves, from the testimony of experts or otherwise, the truths of science which may be involved in cases before them, and ignore testimony that does not coincide with their conclusions. Questions of fact are questions for the jury; and they do not become questions for the court merely because their solution may require scientific knowledge or expert opinion.” Whether a question is one for the decision of the court or of the jury is a question of federal practice as to which we are governed by federal and not by state decisions. We are bound by state decisions as to the substantive law applicable in a case" } ]

[ { "docid": "22870287", "title": "", "text": "5 U.S.C. § 702 (1976), the Government has waived immunity to this suit. After amendment in 1976, 5 U.S.C. § 702 now reads, in part: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party . Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground .... (Emphasis supplied.) Congress intended that this provision, under some circumstances, would waive sovereign immunity. See H.R.Rep.No.94-1656, 94th Cong., 2d Sess. 1, reprinted in [1976] U.S. Code Cong. & Admin.News, pp. 6121, 6121. It may be disputed, however, what those circumstances are. In a recent decision, the Second Circuit has ruled that the amendments to section 702 “did not remove the defense of sovereign immunity in actions under [28 U.S.C.] § 1331.” Watson v. Blumenthal, 586 F.2d 925, 932 (2d Cir. 1978). Jaffee seeks review under section 1331. We are constrained to disagree with the Second Circuit and to hold that section 702, when it applies, waives sovereign immunity in “nonstatutory” review of agency action under section 1331. As the House Report shows, Congress amended section 702 with a specific purpose of waiving sovereign immunity in equitable actions brought under section 1331. The Report notes that acts of the older executive departments, such as the Department of Defense, are subject to judicial review only through “nonstatutory” suits under section 1331. H.R.Rep.No.94-1656, 94th Cong., 2d Sess. 5, reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 6121, 6125. Having reviewed the injustices of" } ]

[ { "docid": "5969238", "title": "", "text": "split in the Circuit Courts on this question. The Second Circuit, in Estate of Watson v. Blumenthal, 586 F.2d 925 (2d Cir. 1978), has ruled that the amendment to § 702 does not remove the defense of sovereign immunity in actions under § 1331. Id. at 932. The Third Circuit Court of Appeals, in Jaffee v. United States, 592 F.2d 712 (3d Cir. 1979), has ruled that § 702 does, in fact, waive sovereign immunity in nonstatutory review of agency action under § 1331. This Court is swayed by the reasoning of the Third Circuit Court of Appeals in Jaffee, supra. However, even though Congress may have waived the government’s sovereign immunity, it has failed to create a substantive right in the Plaintiff under the Immigration and Nationality Act upon which a claim for injunctive relief may be based. See, Hill v. United States, 571 F.2d 1098, 1102-03 (9th Cir. 1978), discussing United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). B) Failure to State a Claim for Which Relief May Be Granted Collyard’s original pleading asserted a claim against the federal Defendants based upon the Immigration and Nationality Act, 8 U.S.C. § 1101 (1976). Plaintiff specifically alleged that the federal Defendants violated § 1101(a)(15)(H)(i) and (ii) and § 1182(aX14) of the Act. In order for Plaintiff to secure relief under the Act, this Court, in the face of three Circuit Courts of Appeal holding contrariwise, must find that the Immigration and Nationality Act creates a private right of action. The Act does not create a private right of action; Plaintiff’s claim based thereupon does not state a claim upon which relief can be granted. The Ninth Circuit Court of Appeals, in Lopez v. Arrowhead Ranches, 523 F.2d 924 (9th Cir. 1975) reasoned that the Immigration and Nationality Act did not create a private right of action. Plaintiffs in that case, citizens and legally admitted alien farm workers, sought relief under § 1324 of the Act. The Ninth Circuit stated: 8 U.S.C. § 1324, the section of the Immigration and Nationality Act upon which plaintiffs" }, { "docid": "8133333", "title": "", "text": "& Admin.News, pp. 6121, 6125. The key question, then, is to which circumstances this waiver was intended to apply. In Watson v. Blumenthal, 586 F.2d at 925, the Second Circuit concluded that 5 U.S.C. § 702 was meant to waive the defense of sovereign immunity in cases where jurisdiction otherwise existed. In other words, the court ruled that § 702 “did not remove the defense of sovereign immunity in actions under 28 U.S.C. § 1331.” 586 F.2d at 932. Based on Watson, the government contends that although § 702 defines when certain defenses are available, it does not create jurisdiction. The appellants point out, however, that the Second Circuit stance has been rejected by several courts. I agree with those latter courts and with appellants that the better view is that § 702 was meant to be a waiver of sovereign immunity specifically for actions brought under § 1331. In Jaffee v. United States, 592 F.2d at 712 the government claimed sovereign immunity as a defense to the plaintiff’s action which was brought under § 1331 jurisdiction. In analyzing the applicability of the sovereign immunity defense, the court found that the plaintiff was entitled to sue the United States by virtue of the statutory waiver of immunity which exists in 5 U.S.C. § 702. The court reasoned as follows: We are constrained to disagree with the Second Circuit and to hold that section 702, when it applies, waives sovereign immunity in “non-statutory” review of agency action under section 1331. 592 F.2d at 718. Indeed this court very recently reached the same conclusion in Warm v. Director, Department of the Treasury, 672 F.2d 590, 591 (6th Cir.1982) (“We align ourselves with the Circuits that have concluded that 5 U.S.C. § 702 waives the sovereign immunity defense in actions for non-monetary relief under Section 1331.”). Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980), cert. denied, 454 U.S. 855, 102 S.Ct. 304, 70 L.Ed.2d 150, reh'g denied, 454 U.S. 1069, 102 S.Ct. 621, 70 L.Ed.2d 605 (1981); Collyard v. Washington Capitals, 477 F.Supp. 1247 (D.Minn.1979); Salzman v. Stetson, 472 F.Supp. 848 (W.D.Pa.1979)." }, { "docid": "5969237", "title": "", "text": "requested relief? Second, if sovereign immunity is not a bar, then has Collyard stated a claim for which relief may be granted? A) Sovereign Immunity If this Court were to review the actions of the federal defendants under the Administrative Procedure Act, 5 U.S.C. § 702 (1976), the issue of sovereign immunity would not arise. The 1976 amendment to § 702 constitutes a blanket waiver of sovereign immunity as to a broad category of actions against the government, and by its terms would apply here, where Plaintiff seeks non-monetary relief. See Hill v. United States, 571 F.2d 1098, 1102 (9th Cir. 1978). Since, however, Plaintiff does not seek review under § 702 of the APA, but rather seeks review under 28 U.S.C. § 1331, it is not clear whether sovereign immunity constitutes a bar to this action. In a nutshell, the issue can be stated in this matter: Did the 1976 amendment to § 702 effectively eliminate sovereign immunity as a bar to certain equitable actions brought under 28 U.S.C. § 1331? There is a split in the Circuit Courts on this question. The Second Circuit, in Estate of Watson v. Blumenthal, 586 F.2d 925 (2d Cir. 1978), has ruled that the amendment to § 702 does not remove the defense of sovereign immunity in actions under § 1331. Id. at 932. The Third Circuit Court of Appeals, in Jaffee v. United States, 592 F.2d 712 (3d Cir. 1979), has ruled that § 702 does, in fact, waive sovereign immunity in nonstatutory review of agency action under § 1331. This Court is swayed by the reasoning of the Third Circuit Court of Appeals in Jaffee, supra. However, even though Congress may have waived the government’s sovereign immunity, it has failed to create a substantive right in the Plaintiff under the Immigration and Nationality Act upon which a claim for injunctive relief may be based. See, Hill v. United States, 571 F.2d 1098, 1102-03 (9th Cir. 1978), discussing United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). B) Failure to State a Claim for Which Relief" }, { "docid": "5922111", "title": "", "text": "reject defendants’ sovereign immunity claim because we believe that Congress has waived immunity to some of Neal’s claims by statute. We find precedent for this proposition in the recent Third Circuit decision of Jaffee v. United States, 592 F.2d 712 (3d Cir.), cert. denied,- U.S. -, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979). There the court held that the 1976 Amendments to § 702 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 (1976), reflect a Congressional intent to waive sovereign immunity under some circumstances. This section now provides, in pertinent part: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground . In Jaffee, rejecting the Second Circuit’s contrary view as expressed in Watson v. Blumenthal, 586 F.2d 925 (2d Cir. 1978), the court held that “section 702, when it applies, waives sovereign immunity in ‘non-statutory’ review of agency action under [28 U.S.C.] section 1331.” 592 F.2d at 718. Specifically, the court held that the waiver applies to equitable actions under § 1331, i. e. suits for relief other than money damages, in which review of agency action is sought, i. e. action by an “agency” as that term is defined in 5 U.S.C. § 701(b)(1) (1976). Our determination that this holding supports a finding in the instant case of at least a partial waiver of sovereign immunity can best be understood by first .examining" }, { "docid": "822001", "title": "", "text": "United States or that the United States is an indispensable party. The Second Circuit, however, has held that this provision does not remove the defense of sovereign immunity from APA actions seeking equitable relief that are brought pursuant to section 1331. Watson v. Blumenthal, supra, 586 F.2d at 932. Nor is the defense affected by the 1976 amendments to section 1331 that abolished the jurisdictional amount requirement in suits against the United States, its agencies, and employees acting in their official capacities. Id. As stated by the Second Circuit in Watson : [T]here is no subject matter jurisdiction under the APA because the Act itself is not a grant of jurisdiction. Califano v. Sanders, 430 U.S. at 105, 97 S.Ct. 980, 51 L.Ed.2d 192, and the amendments also do not provide for jurisdiction but only make it clear that sovereign immunity will not be a defense in actions in which jurisdiction does exist; there is also no jurisdiction under § 1331 because of sovereign immunity, a defense that the amendments did not affect. Just as prior to the amendments to § 1331 the absence of a jurisdictional amount under the APA did not negate the requirement of a minimum amount in controversy in actions under § 1331, now the waiver of sovereign immunity under the APA does not affect the limitation of the sovereign immunity defense on jurisdiction under § 1331. Id. The Watson court held in the alternative that the Tucker Act, 28 U.S.C. § 1491, precluded the district court’s jurisdiction under section 1331 in that case. Therefore, the court’s discussion of the effect of section 702 on section 1331 jurisdiction was not essential to the court’s ruling in the case. Sharrock v. Harris, 473 F.Supp. 1173, at 1176 (S.D.N.Y.1979). Nevertheless, this Court is compelled to follow the Second Circuit’s clear pronouncement that neither the APA nor the section 1331 amendments negate the sovereign immunity defense in actions brought for non-monetary relief under section 1331. Sovereign immunity is not, however, a valid defense to Doe’s claim that the CSC investigatory procedures violated her constitutional rights. The immunity doctrine does" }, { "docid": "821999", "title": "", "text": "514 F.2d 794, 808 (5th Cir. 1976) (sovereign immunity does not bar “comparatively mild” relief to plaintiffs seeking court order expunging their names as unindicted conspirators from federal grand jury indictment); Leopold v. Civil Service Commission, 450 F.Supp. 154, 157-78 (E.D.N.Y. 1978) (sovereign immunity does not bar government attorneys, whose positions were erroneously classified, from receiving “modest” relief, pursuant to mandamus statute, of being eligible for promotions unprejudiced by their previous wrongful classifications; court expressly “expresses no view” as to whether same relief would be available under the APA). Doe seeks “specific relief against an officer of the sovereign acting not in any individual capacity but strictly as an official.” Watson v. Blumenthal, 586 F.2d 925, 929 (2d Cir. 1978). Absent an exception to the general rule, the sovereign immunity doctrine applies to actions seeking declaratory and injunctive relief against the CSC, see, e. g., Hill v. United States, 571 F.2d 1098 (9th Cir. 1978); Gnotta v. United States, 415 F.2d 1271 (8th Cir.), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1969), or to an action to compel disclosure of allegedly secret information held by a government agency, see, e. g., Leonhard v. Mitchell, 473 F.2d 709 (2d Cir. 1973). See also James v. Ambrose, 367 F.Supp. 1321 (D.V.I.1973) (sovereign immunity bars suit against custom service where plaintiff seeks a hearing on his discharge, reinstatement, and a declaratory judgment). Although the issue is not free from doubt, the Court concludes that it lacks jurisdiction over Doe’s APA claims unless they fall within a statutory waiver of immunity or one of the recognized exceptions to the sovereign immunity rule. See Watson v. Blumenthal, supra, 586 F.2d at 929-30. Section 702 of the APA provides, in part, that: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the" }, { "docid": "8133332", "title": "", "text": "judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.... Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground ... The legislative history of § 702 and relevant case law clearly establish that Congress intended to waive sovereign immunity through this provision under certain circumstances. Jaffee v. United States, 592 F.2d 712 (3rd Cir.) cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979); Watson v. Blumenthal, 586 F.2d 925 (2d Cir.1978); H. R.Rep. No. 94-1656, 94th Cong., 2d Sess. I, reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 6121, 6125. The key question, then, is to which circumstances this waiver was intended to apply. In Watson v. Blumenthal, 586 F.2d at 925, the Second Circuit concluded that 5 U.S.C. § 702 was meant to waive the defense of sovereign immunity in cases where jurisdiction otherwise existed. In other words, the court ruled that § 702 “did not remove the defense of sovereign immunity in actions under 28 U.S.C. § 1331.” 586 F.2d at 932. Based on Watson, the government contends that although § 702 defines when certain defenses are available, it does not create jurisdiction. The appellants point out, however, that the Second Circuit stance has been rejected by several courts. I agree with those latter courts and with appellants that the better view is that § 702 was meant to be a waiver of sovereign immunity specifically for actions brought under § 1331. In Jaffee v. United States, 592 F.2d at 712 the government claimed sovereign immunity as a defense to the plaintiff’s action which was brought under §" }, { "docid": "23623652", "title": "", "text": "relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought. It is clear that Section 702 does not waive sovereign immunity as to Counts 4, 6 and 7 since they seek monetary damages. This leaves to be considered the claims for equitable relief in Counts 1 and 2. The relationship between Section 702 and actions brought under section 1331 was once the subject of a disagreement between this court and the Third Circuit. In Estate of Watson v. Blumenthal, 586 F.2d 925 (2d Cir.1978), we held, as an alternative ground of decision, that section 702 “did not remove the defense of sovereign immunity in actions under § 1331.” Id. at 932. In Jaffee v. United States, 592 F.2d 712 (3d Cir.1979), the Third Circuit reached the contrary conclusion. We have now abandoned this al ternative ground of Watson and read section 702 as a waiver of immunity where a proper action is brought under 28 U.S.C. § 1331. BK Instrument, Inc. v. United States, 715 F.2d 713 (2d Cir.1983). Section 702 limits the waiver to a “legal wrong [suffered] because of agency action.” We may assume for purposes of this discussion only that the initiation of an investigation and issuance of subpoenas motivated by a general malice or desire to harass constitutes such a “legal wrong.” However, a proviso to Section 702 states that the waiver of immunity does not “[affect] other limitations on judicial review.” We must, therefore, address the question of whether the review available in a subpoena enforcement proceeding falls within this proviso and sovereign immunity continues to bar an action under Section 1331 challenging an SEC investigation. The legislative history of Section 702 amply demonstrates that Congress did not intend to waive sovereign immunity where a matter is statutorily committed to agency discretion or where “another statute provides a form of relief which is expressly or impliedly exclusive.” H.R. No. 94-1656, p. 3, 94th Cong.2d Sess., reprinted in U.S.Code Cong. & Ad.News," }, { "docid": "2816964", "title": "", "text": "1331 is unambiguous: The purpose of this bill is best summarized by stating that it would remove three technical barriers to the consideration on the merits of citizens’ complaints against the Federal Government, its agencies or employees. The amendment made to section 702 of title 5 would eliminate the defense of sovereign immunity as to any action in a Federal court seeking relief other than money damages and stating a claim based on the assertion of unlawful official action by an agency or by an officer or employee of the agency. ... Another problem which may arise in actions for judicial review of administrative action is that the right asserted cannot be valued in dollars and cents. Section 2 of the bill meets this problem by amending section 1331(a) of title 28 by adding an exception to the requirement that there be at least $10,000 in controversy, so that when the action is brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity, the establishment of any such sum or value would not be required. H.R.No.94-1656, 94th Cong., 2d Sess., reprinted in [1976] U.S.Code Cong. & Ad.News, 6121, 6123-24. Our analysis would end here were it not for the District Court’s reliance on a recent case from the Second Circuit, Estate of Watson v. Blumenthal, 586 F.2d 925 (2d Cir. 1978), which held that the defense of sovereign immunity under Section 1331 is not waived by the recent amendments to the APA. That Court’s view seems in conflict with the clear intent of the amendment, and is based on the faulty assumption that Section 1331 incorporates a tacit bar to all suits where the United States is a defendant, unless abrogated by an amendment to Section 1331 itself. We are thus unable to endorse the Second Circuit’s reasoning in the Blumenthal case. Accordingly, the judgment of the District Court is reversed and the case remanded for consideration of remaining issues. . 5 U.S.C. § 702 provides in part: An action in a court of the United States seeking relief other than money" }, { "docid": "2408857", "title": "", "text": "Government agent was authorized to waive immunity. The relevant legislative history reveals that Title V was intended only to give the Attorney General power and money to protect government witnesses. It does not imply, much less “unequivocally express,” that the statute was intended to expand the Government’s amenability to suit. Doe looks also to the Administrative Procedure Act (“APA”) in her search for a waiver of sovereign immunity. APA section 1, which provides a right to judicial review of agency action, is limited to actions “seeking relief other than money damages.” Thus, the APA cannot be considered a grant of jurisdiction over Doe’s claims for money. But even with respect to Doe’s equitable claims, the APA is of little help, for it does not confer jurisdiction on the federal courts. Califano v. Sanders, 430 U.S. 99, 104-07, 97 S.Ct. 980, 983-985, 51 L.Ed.2d 192 (1977). The waiver of sovereign immunity contained in section 702 only “make[s] it clear that sovereign immunity will not be a defense in actions in which jurisdiction does exist.” Estate of Watson v. Blumenthal, 586 F.2d 925, 932 (2d Cir. 1978). The APA was never intended to “affect the limitation of the sovereign immunity defense on jurisdiction under [the applicable jurisdictional statute].” Id. Nor is the mandamus statute an all-purpose waiver of the Government’s immunity from suit. Estate of Watson, supra, 586 F.2d at 934-35. “Certainly, Congress never intended § 1361 to be interpreted so as to allow the extraordinary writ of mandamus to be converted into a device for obtaining piece-meal solution of contractual disputes to which the United States is a party.” Massachusetts v. Connor, 248 F.Supp. 656, 660 (D.Mass.), aff’d per curiam, 366 F.2d 778 (1st Cir. 1966). Doe’s arguments under the Tucker Act are more focused. Section 1 of the Tucker Act, 28 U.S.C. § 1346(a)(2) (Supp. 1980), provides in pertinent part: The district courts shall have original jurisdiction, concurrent with the Court of Claims of: (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress," }, { "docid": "23623651", "title": "", "text": "310 (1973). Prior to 1976, sovereign immunity would clearly have barred an action such as Spreeher’s under Section 1331. However, in that year, Congress amended the Administrative Procedures Act (“APA”) to provide for a limited waiver of sovereign immunity. That waiver, 5 U.S.C. § 702 (1976) reads in pertinent part: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. ... Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought. It is clear that Section 702 does not waive sovereign immunity as to Counts 4, 6 and 7 since they seek monetary damages. This leaves to be considered the claims for equitable relief in Counts 1 and 2. The relationship between Section 702 and actions brought under section 1331 was once the subject of a disagreement between this court and the Third Circuit. In Estate of Watson v. Blumenthal, 586 F.2d 925 (2d Cir.1978), we held, as an alternative ground of decision, that section 702 “did not remove the defense of sovereign immunity in actions under § 1331.” Id. at 932. In Jaffee v. United States, 592 F.2d 712 (3d Cir.1979), the Third Circuit reached the contrary conclusion. We have now abandoned this al ternative ground of Watson and read section 702 as a waiver of immunity where a proper action" }, { "docid": "22428145", "title": "", "text": "seeking nonmonetary relief for violation of her fifth amendment rights. We recognize the division of authority on the question whether and under what circumstances section 702 waives sovereign immunity in actions brought under 28 U.S.C. § 1331. Compare Jaffee v. United States, supra, and Neal, supra, (waiver) with Estate of Watson v. Blumenthal, 586 F.2d 925 (2d Cir.1978) and Sharrock v. Harris, 473 F.Supp. 1173 (S.D.N.Y.1979) (no waiver). See also National Treasury Employees Union, supra, 589 F.2d at 673 n.7 (waiver) (dicta). Although the Glines decision admittedly did not address the sovereign immunity issue in as much detail as the courts in Jaffee or Watson, we think it states the controlling law of this circuit. We therefore affirm the district court’s determination that it had jurisdiction over Saal’s claims for nonmonetary relief under 28 U.S.C. § 1331. Our conclusion is consistent with Lee v. Blumenthal, 588 F.2d 1281 (9th Cir. 1979), where the plaintiff sought a writ of mandamus to compel the Secretary of the Treasury to redeem certain bonds controlled by the Second Liberty Bond Act. 31 U.S.C. §§ 752, 754(b). The court viewed the plaintiff’s lawsuit as essentially one for money damages arising from a contract dispute and concluded that the Court of Claims had exclusive jurisdiction over the action since a judgment over $10,000 was sought. See also Watson, supra. The court’s brief discussion of 5 U.S.C. § 702 and Hill, supra, is best understood as recognizing that section 702 was not intended to disturb the existing limitations on district court jurisdiction imposed by the Tucker Act. We do not interpret Lee to hold that section 702 was not a waiver; of sovereign immunity in actions properly brought under section 1331. In light of our holding, we find it unnecessary to address whether the language in Glines and Larson, stating that sovereign immunity does not apply where the plaintiff claims “that a government official acted in violation of the Constitution,” 586 F.2d at 681, would provide an alternate ground, independent of 5 U.S.C. § 702, for finding sovereign immunity inapplicable to Saal’s nonmonetary claims. At least one" }, { "docid": "22428144", "title": "", "text": "The waiver of sovereign immunity found by the court was an amendment to the Administrative Procedure Act. The amendment provided in part: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. 5 U.S.C. § 702. In Hill v. United States, 571 F.2d 1098 (9th Cir. 1978), an action brought in the district court under the Tucker Act, 28 U.S.C. § 1346(a), this court held that the waiver of sovereign immunity expressed in section 702 applied retroactively to actions brought in the district court under 28 U.S.C. § 1346(a). We construe the decisions in Glines and Hill as holding that section 702 waives sovereign immunity for Saal’s action brought under 28 U.S.C. § 1331 seeking nonmonetary relief for violation of her fifth amendment rights. We recognize the division of authority on the question whether and under what circumstances section 702 waives sovereign immunity in actions brought under 28 U.S.C. § 1331. Compare Jaffee v. United States, supra, and Neal, supra, (waiver) with Estate of Watson v. Blumenthal, 586 F.2d 925 (2d Cir.1978) and Sharrock v. Harris, 473 F.Supp. 1173 (S.D.N.Y.1979) (no waiver). See also National Treasury Employees Union, supra, 589 F.2d at 673 n.7 (waiver) (dicta). Although the Glines decision admittedly did not address the sovereign immunity issue in as much detail as the courts in Jaffee or Watson, we think it states the controlling law of this circuit. We therefore affirm the district court’s determination that it had jurisdiction over Saal’s claims for nonmonetary relief under 28 U.S.C. § 1331. Our conclusion is consistent with Lee v. Blumenthal, 588 F.2d 1281 (9th Cir. 1979), where the plaintiff sought a writ of mandamus to compel the Secretary of the Treasury to redeem certain bonds controlled by the Second Liberty" }, { "docid": "822002", "title": "", "text": "prior to the amendments to § 1331 the absence of a jurisdictional amount under the APA did not negate the requirement of a minimum amount in controversy in actions under § 1331, now the waiver of sovereign immunity under the APA does not affect the limitation of the sovereign immunity defense on jurisdiction under § 1331. Id. The Watson court held in the alternative that the Tucker Act, 28 U.S.C. § 1491, precluded the district court’s jurisdiction under section 1331 in that case. Therefore, the court’s discussion of the effect of section 702 on section 1331 jurisdiction was not essential to the court’s ruling in the case. Sharrock v. Harris, 473 F.Supp. 1173, at 1176 (S.D.N.Y.1979). Nevertheless, this Court is compelled to follow the Second Circuit’s clear pronouncement that neither the APA nor the section 1331 amendments negate the sovereign immunity defense in actions brought for non-monetary relief under section 1331. Sovereign immunity is not, however, a valid defense to Doe’s claim that the CSC investigatory procedures violated her constitutional rights. The immunity doctrine does not bar a suit against federal officials when “the complaint alleges that agents of the Government have exceeded their constitutional authority while purporting to act in the name of the sovereign.” Berk v. Laird, 429 F.2d 302, 306 (2d Cir. 1970), cert. denied sub nom. Orlando v. Laird, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971); see Dugan v. Rank, supra, 372 U.S. at 621-22, 83 S.Ct. 999; Larson v. Domestic & Foreign Commerce Corp., supra, 337 U.S. at 689-91, 69 S.Ct. 1457; Leonhard v. Mitchell, supra, 473 F.2d at 712 n.2; Menard v. Mitchell, 139 U.S.App.D.C. 113, 120 n.36, 430 F.2d 486, 493 n.36 (D.C.Cir.1970). Judicial review pursuant to the APA includes determining the constitutionality of an agency’s conduct. 5 U.S.C. § 706(2)(B). See Hoffman v. HUD, 519 F.2d 1160, 1165 (5th Cir. 1975). Thus, in contrast to Watson, this Court has jurisdiction under section 1331 because the sovereign immunity defense is not available to defendants charged with violating the Constitution. See Mow Sun Wong v. Hampton, 333 F.Supp. 527, 529-30 (N.D.Cal.1971)," }, { "docid": "822000", "title": "", "text": "(1969), or to an action to compel disclosure of allegedly secret information held by a government agency, see, e. g., Leonhard v. Mitchell, 473 F.2d 709 (2d Cir. 1973). See also James v. Ambrose, 367 F.Supp. 1321 (D.V.I.1973) (sovereign immunity bars suit against custom service where plaintiff seeks a hearing on his discharge, reinstatement, and a declaratory judgment). Although the issue is not free from doubt, the Court concludes that it lacks jurisdiction over Doe’s APA claims unless they fall within a statutory waiver of immunity or one of the recognized exceptions to the sovereign immunity rule. See Watson v. Blumenthal, supra, 586 F.2d at 929-30. Section 702 of the APA provides, in part, that: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The Second Circuit, however, has held that this provision does not remove the defense of sovereign immunity from APA actions seeking equitable relief that are brought pursuant to section 1331. Watson v. Blumenthal, supra, 586 F.2d at 932. Nor is the defense affected by the 1976 amendments to section 1331 that abolished the jurisdictional amount requirement in suits against the United States, its agencies, and employees acting in their official capacities. Id. As stated by the Second Circuit in Watson : [T]here is no subject matter jurisdiction under the APA because the Act itself is not a grant of jurisdiction. Califano v. Sanders, 430 U.S. at 105, 97 S.Ct. 980, 51 L.Ed.2d 192, and the amendments also do not provide for jurisdiction but only make it clear that sovereign immunity will not be a defense in actions in which jurisdiction does exist; there is also no jurisdiction under § 1331 because of sovereign immunity, a defense that the amendments did not affect. Just as" }, { "docid": "22980947", "title": "", "text": "his official capacity. More specifically the House Report stated that the amendment to § 702 “would eliminate the defense of sovereign immunity as to any action in a Federal court seeking relief other than money damages and stating a claim based on the assertion of unlawful official action by an agency or by an officer or employee of the agency.” Id. at 3, reprinted in 1976 U.S. Code Cong. & Ad.News at 6123. The report referred to “the many statutes in which Congress has provided a special procedure for reviewing particular administrative activity,” but remarked that “[ujnfortunately, these special statutes do not cover many of the functions performed by the older executive departments, such as the Departments of State, Defense, Treasury, Justice, Interior, and Agriculture.” Actions to review such decisions were referred to as “non-statutory review actions and jurisdiction over them lay in the district courts.” Id. at 5, reprinted in 1976 U.S.Code Cong. & Ad. News at 6125. However, the defendants in such actions would interpose the defense of sovereign immunity, and much time had to be spent in determining whether the case fell within one of the Larson exceptions. The committees thought “the time [has] now come to eliminate the sovereign immunity defense in all equitable actions for specific relief against a Federal agency or officer acting in an official capacity.” Id. at 9, reprinted in 1976 U.S.Code Cong. & Ad.News at 6129. We were thus mistaken in suggesting in Watson, supra, 586 F.2d at 932, that the 1976 amendments to the APA “did not remove the defense of sovereign immunity in actions brought under § 1331.” Under Califano v. Sanders, supra, decided after the 1976 amendment, there can be no action “brought under the APA.” A highly regarded text comments on the sentence quoted from Watson: Since the Administrative Procedure Act does not itself confer jurisdiction, this would mean, would it not, that the amendments had no effect on immunity at all? and notes that “[t]he Third Circuit forthrightly disagreed” in Jaffee v. United States, 592 F.2d 712, 718-19 (3 Cir.), cert, denied, 441 U.S. 961, 99" }, { "docid": "2816965", "title": "", "text": "such sum or value would not be required. H.R.No.94-1656, 94th Cong., 2d Sess., reprinted in [1976] U.S.Code Cong. & Ad.News, 6121, 6123-24. Our analysis would end here were it not for the District Court’s reliance on a recent case from the Second Circuit, Estate of Watson v. Blumenthal, 586 F.2d 925 (2d Cir. 1978), which held that the defense of sovereign immunity under Section 1331 is not waived by the recent amendments to the APA. That Court’s view seems in conflict with the clear intent of the amendment, and is based on the faulty assumption that Section 1331 incorporates a tacit bar to all suits where the United States is a defendant, unless abrogated by an amendment to Section 1331 itself. We are thus unable to endorse the Second Circuit’s reasoning in the Blumenthal case. Accordingly, the judgment of the District Court is reversed and the case remanded for consideration of remaining issues. . 5 U.S.C. § 702 provides in part: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. . In April 1980, when appellant filed his complaint, 28 U.S.C. § 1331(a) provided: The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. . Under the National Firearms Act, a maker of a “firearm” must secure the approval of the Secretary of the Treasury; have the firearm registered; pay a tax of $200 for each" }, { "docid": "257853", "title": "", "text": "12, 1981) which implements a Department of Defense Directive. J.A. at 219. The policy of 1900.9C, under which appellant was discharged, is continued in effect by 1900.9D. . In his amended complaint, appellant eliminated any damages claim. Reply Brief of Appellant at 6 n. 6. Specifically, appellant seeks to have this court enjoin the Navy from discharging him and order his reinstatement. Complaint at 12; J.A. at 12. . We note that there has been some disagreement on the question whether 5 U.S.C. § 702 (1982) does in fact waive sovereign immunity in suits under 28 U.S.C. § 1331 (1982). The Second Circuit first held, as an alternative ground for a correct decision, that the 1976 amendments to § 702 \"did not remove the defense of sovereign immunity in actions under [28 U.S.C.] § 1331.” Estate of Watson v. Blumenthal, 586 F.2d 925, 932 (2d Cir.1978). Later, however, another of that circuit’s panels, one which included within it the author of the opinion in Watson, disagreed with that determination, B.K. Instrument, Inc. v. United States, 715 F.2d 713, 724 (2d Cir.1983), as have the Third, Fifth, Sixth and Ninth Circuits. Jaffee v. United States, 592 F.2d 712, 718-19 (3d Cir.), cert, denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979); Sheehan v. Army & Air Force Exchange Service, 619 F.2d 1132, 1139 (5th Cir.1980), rev’d on other grounds, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982); Warm v. Director, Dep't of Treasury, 672 F.2d 590, 591-92 (6th Cir.1982) (per curiam); Beller v. Middendorf, 632 F.2d 788, 796-97 (9th Cir.), cert, denied, 452 U.S. 905, - 101 S.Ct. 3030, 69 L.Ed.2d 405 (1980). See P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System 346 (2d ed. Supp.1981) (\"Since the Administrative Procedure Act does not itself confer jurisdiction, [the determination in Watson ] would mean, would it not, that the amendments had no effect on immunity at all?’’). . The Court also struck down a provision of the law forbidding distribution of contraceptives to those less than 16" }, { "docid": "23001022", "title": "", "text": "436 U.S. 604, 607, 98 S.Ct. 2002, 2005 n.6, 56 L.Ed.2d 570 (1978); Schlesinger v. Councilman, 420 U.S. 738, 744 n.9, 95 S.Ct. 1300, 1306, 43 L.Ed.2d 591 (1975). Sheehan’s complaint alleged procedural due process violations, arbitrary and capricious action constituting an abuse of discretion (presumably in contravention of substantive due process), and that Hospelhorn’s denial of the appeal infringed other constitutional and statutory protections. The charge that appellate review by Hospelhorn violated governing regulations also arises under the “laws” of the United States. Chasse v. Chasen, 595 F.2d 59, 61 (1st Cir. 1979); Spencer v. Laird, 442 F.2d 904, 906 (2d Cir. 1971); Farmer v. Philadelphia Electric Co., 329 F.2d 3, 7-8 (3d Cir. 1964). Federal question jurisdiction under section 1331(a) is triggered by these allegations because they are not “so patently without merit as to justify . . . the court’s dismissal for want of jurisdiction.” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 70, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978), quoting, Hagans v. Lavine, 415 U.S. 528, 542-43, 94 S.Ct. 1372, 1381-82, 39 L.Ed.2d 577 (1974) (emphasis in the original). Nevertheless, section 1331(a) is not a waiver of sovereign immunity. Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir. 1972). Sheehan must look to 5 U.S.C. § 702 (1976) for the waiver. The 1976 amendment to that statute waives sovereign immunity for actions against federal government agencies, seeking nonmonetary relief, if the agency conduct is otherwise subject to judicial review. We are cognizant of the fact that the Second Circuit has recently held that section 702 does not waive the bar of sovereign immunity for nonstatutory review of agency action under section 1331. Estate of Watson v. Blumenthal, 586 F.2d 925, 932 (2d Cir. 1978). Nevertheless, we find the illumination of the legislative history of section 702 by the Third Circuit in Jaffee v. United States, 592 F.2d 712, 718-19 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979), cogent. We too must respectfully part with the Second Circuit and hold that Congress did intend to" }, { "docid": "23001023", "title": "", "text": "528, 542-43, 94 S.Ct. 1372, 1381-82, 39 L.Ed.2d 577 (1974) (emphasis in the original). Nevertheless, section 1331(a) is not a waiver of sovereign immunity. Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir. 1972). Sheehan must look to 5 U.S.C. § 702 (1976) for the waiver. The 1976 amendment to that statute waives sovereign immunity for actions against federal government agencies, seeking nonmonetary relief, if the agency conduct is otherwise subject to judicial review. We are cognizant of the fact that the Second Circuit has recently held that section 702 does not waive the bar of sovereign immunity for nonstatutory review of agency action under section 1331. Estate of Watson v. Blumenthal, 586 F.2d 925, 932 (2d Cir. 1978). Nevertheless, we find the illumination of the legislative history of section 702 by the Third Circuit in Jaffee v. United States, 592 F.2d 712, 718-19 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979), cogent. We too must respectfully part with the Second Circuit and hold that Congress did intend to waive the defense of sovereign immunity for nonstatutory review under section 1331. Accord, Collyard v. Washington Capitals, 477 F.Supp. 1247, 12521-53 (D.Minn.1979). However, the AAFES argues that the 1970 amendment to 28 U.S.C. § 1346 (1976), which provided that express or implied contracts with the AAFES are to be considered as contracts with the United States, impliedly prohibits jurisdiction under 28 U.S.C. § 1331(a) (1976) and 5 U.S.C. § 702 (1976). It argues that in enacting that amendment, Congress believed that it was extending the sole vehicle for suit against the AAFES. Reliance is then placed on Brown v. General Services Administration, 425 U.S. 820, 828-29, 96 S.Ct. 1961, 1965-66, 48 L.Ed.2d 402 (1976), and other cases, for the proposition that this belief, even if erroneous, impliedly prohibits relief under clause (2) in section 702. We do not find this argument persuasive. The AAFES has not pointed us to any authority that indicates that Congress’ purpose in enacting the 1970 amendment was to provide the only method for suing the AAFES. Indeed, Hopkins, 427 U.S." } ]

[ { "docid": "7035094", "title": "", "text": "time of trial, and no direct evidence was submitted at the supplemental hearing to indicate that there was any particular portion of the original trial that the defendants could not actually understand. The finding that the defendants’ ability to communicate with counsel was not impaired is also not clearly erroneous. The record reflects that the interpreter sat between defendants Lim and Ko, on one arm of an L-shaped counsel table arrangement. The defense counsel sat on the other arm several feet away. Communication with counsel during trial was by means of notes. The arrangement was chosen by defendants and their counsel, not by the court. Mr. Lim’s own interpreter was used to communicate with counsel during breaks or recesses in the trial. There was therefore no loss of oral communication between counsel and client during the testimony of Mr. Kun Kim, because counsel and defendants were seated apart and communicated, when they wished to do so, by notes or during recesses. Mr. Lim’s interpreter was present in the courtroom at all times and there is no indication that Lim ever wished to communicate with his counsel during the Kim testimony. We affirm the district court's findings. As long as the defendants’ ability to understand the proceedings and communicate with counsel is unimpaired, the appropriate use of interpreters in the courtroom is a matter within the discretion of the district court. See United States v. Coronel-Quintana, 752 F.2d 1284, 1291 (8th Cir.1985). The district court did not abuse its discretion in its use of the interpreters in this case. Lim also suggests that the Court Interpreters Act, 28 U.S.C. § 1827(f)(1) was violated because there was no express waiver of the statutory right to interpretation created by the Act. The waiver provision provides: Any individual ... who is entitled to interpretation under subsection (d) of this section may waive such interpretation in whole or in part. Such a waiver shall be effective only if approved by the presiding judicial officer and made expressly by such individual on the record after opportunity to consult with counsel and after the presiding judicial officer" } ]

[ { "docid": "22885011", "title": "", "text": "clarified that a finding that Si intended to trick Hsiung and Nguyen out of their up-front money was not a defense if the jury found that Si also intended to rob the truck and its contents. The supplemental jury instructions did not state or imply that a finding that Si only intended to steal the up-front money was not a defense. The supplemental jury instructions were an accurate statement of the law and did not compromise Si’s defense or eliminate an element of the offense. D The district court did not abuse its discretion in formulating the supplemental jury instructions in response to the jury’s question. Si alleges that the district court abused its discretion by not clearing up the jury’s confusion. Relying on cases which hold that the trial court has a duty to clear away all confusion “with concrete accuracy” when a jury requests clarification, Si claims instructional error. United States v. McIver, 186 F.3d 1119, 1130 (9th Cir.1999) (quoting Bollenbach v. United States, 326 U.S. 607, 613, 66 S.Ct. 402, 90 L.Ed. 350 (1946)); see also United States v. Warren, 984 F.2d 325, 329-30 (9th Cir.1993); United States v. Zimmerman, 943 F.2d 1204, 1214 (10th Cir.1991). The supplemental jury instructions specifically stated that “Mr. Si is not charged with the use of a firearm in relationship in an attempt to steal or (trick) money. The only circumstance under which you should consider count 2[for use of a firearm in furtherance of a crime of violence] is if you find him guilty of conspiracy to commit robbery in count 1.” This statement directly addresses the jury’s request for clarification in a clear and accurate manner. The supplemental jury instructions specifically requested that the jury let the court know if jurors had any further questions regarding their request for clarification. The jury posed no further questions or requests for clarification. The district court’s supplemental jury instructions cleared away jury confusion with concrete accuracy. There was no abuse of discretion. E Si claims that the district court’s rejection of his request for multiple con spiracy instructions constituted error. Si cites" }, { "docid": "22439014", "title": "", "text": "gained from component experience; (5) the nonstandard coefficient of friction used by SI in making calculations for system design; (6) the contents of three pending SI patent applications; (7) Si’s CARTRAC costing and pricing information; and (8) nonstandard formulae for systems design developed by an IHI engineer (the “Tokunago formula book”). We reverse the district court’s findings that the following were Si’s trade secrets: knowledge of the existence of alternate suppliers of parts at lower prices; knowledge of long lead times in component supply; knowledge of key decisionmakers within General Motors, Si’s identification of GM needs for “two-way accumulation”, “tugger”, and “buffer” systems; the two-way accumulation system developed by appellants for ROBOTRAC while they were still in Si’s employ; methods developed by appellants, while they were still in Si’s employ, for achieving car-to-car accumulation without infringing on the Jacoby patent; and Si’s “know-how” in systems engineering. B. Equitable Considerations In exercising its discretion in the issuance of a preliminary injunction, a district court must weigh, in addition to the movant’s probability of success on the merits: (1) the threat of irreparable harm to the movant if relief is denied; (2) the balance of harms; and (3) the public interest. Continental Group v. Amoco Chemicals Corp., supra, 614 F.2d at 356-57. Appellants contend that the district court abused its equitable discretion because none of these factors militate in favor of a preliminary injunction here. We disagree. Though our holdings with regard to the individual trade secret findings require that the preliminary injunction be vacated, we see no barrier to issuance of a modified injunction on remand. Appellants contend that there lias been no showing that SI will suffer irreparable harm in the absence of a preliminary injunction. They rely on the fact ihat SI did not move for a preliminary injunction until seven months after filing Iheir complaint. (SI attributes this delay to ilppellants’ failure to comply with discovery.) We do not understand appellants to be asserting the defense of laches, but i lather to be suggesting an estoppel — i.e., ill’s conduct is inconsistent with a claim of immediate and" }, { "docid": "22884997", "title": "", "text": "that Si’s abilities to comprehend the proceedings and communicate with his counsel were not impaired by language difficulties — we hold that the district court did not violate Si’s statutory or constitutional rights to an interpreter. So long as Si’s ability to communicate was not inhibited by language problems, appointment of an interpreter was within the district court’s discretion, and “especially in light of [Si’s] failure to [request an interpreter] we cannot say that the court abused its discretion here.” Gonzalez v. United States, 33 F.3d 1047, 1051 (9th Cir.1994). We need not reach the question whether Si waived any right to an interpreter by failing to take advantage of interpreters that were available in the courtroom. Ill On January 5, 2000, Si moved for discovery of information pertaining to Jake Hsiung’s criminal activities and informant activities. The government was ordered to produce the information pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The government produced most of the requested material, including Hsiung’s criminal history and all reports of Hsiung’s activity as an informant in Si’s case. Nonetheless, the government withheld reports pertaining to Hsiung’s participation as an informant in unrelated, ongoing investigations, and redacted names and identifying information of unrelated individuals from reports about Hsiung’s past criminal activities. The district court subsequently reversed the discovery order to the extent that it required the government to produce anything beyond what it had already produced. Si challenges this reversal on appeal. We review the district court’s decision to allow the government to withhold evidence de novo. United States v. Monroe, 943 F.2d 1007, 1012 (9th Cir.1991). We review the decision to allow the production of redacted documents for clear error. Id. We hold that there was no Brady violation under either standard of review. The Supreme Court has identified the three components of a Brady violation: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”" }, { "docid": "22885010", "title": "", "text": "which thereby freed the government of its burden of proving each element of the charge beyond a reasonable doubt. B Whether supplemental jury instructions given in response to a jury request for clarification correctly state the elements of an offense is reviewed de novo. United States v. Gergen, 172 F.3d 719, 724 (9th Cir.1999). On appeal, we also review the district court’s formulation of jury instructions in response to jury requests for clarification for abuse of discretion. United States v. Amlani, 111 F.3d 705, 716 (9th Cir.1997). C The district court did not excise the mens rea requirement from the jury instructions. The district court’s original jury instructions stated that Si must become a conspirator member “knowing at least of its objectives and intending to help accomplish it” and by “willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy.” The supplemental jury instructions did not conflict with the original jury instructions. Nor did they supersede the original jury instructions. Rather, the supplemental jury instructions clarified that a finding that Si intended to trick Hsiung and Nguyen out of their up-front money was not a defense if the jury found that Si also intended to rob the truck and its contents. The supplemental jury instructions did not state or imply that a finding that Si only intended to steal the up-front money was not a defense. The supplemental jury instructions were an accurate statement of the law and did not compromise Si’s defense or eliminate an element of the offense. D The district court did not abuse its discretion in formulating the supplemental jury instructions in response to the jury’s question. Si alleges that the district court abused its discretion by not clearing up the jury’s confusion. Relying on cases which hold that the trial court has a duty to clear away all confusion “with concrete accuracy” when a jury requests clarification, Si claims instructional error. United States v. McIver, 186 F.3d 1119, 1130 (9th Cir.1999) (quoting Bollenbach v. United States, 326 U.S. 607, 613, 66 S.Ct. 402, 90 L.Ed." }, { "docid": "22885007", "title": "", "text": "The fact that the government actually provided the robbery target does not amount to inducement. See United States v. Simas, 937 F.2d 459, 462 (9th Cir.1991) (stating that “the offering of an opportunity to commit a crime is not conduct amounting to inducement”). Si argues that he was induced because after a certain point he stopped taking Hsiung and Nguyen’s calls and indicated that he did not want to deal with them. The evidence shows, though, that Si still continued the conspiracy with Lam during the time Si suspended communication with Hsiung and Nguyen. Furthermore, Si independently arranged to have a van rented for the robbery. Sufficient evidence existed to conclude that Si was not induced to commit the conspiracy to rob the truck and its contents. The district court did not err in concluding that Si was not entrapped as a matter of law. VII Si’s next claim is that the supplemental jury instruction eliminated, misstated or omitted an essential element of the crime of conspiracy to commit a robbery that affects interstate commerce. In addition, Si claims that the district court abused its discretion in formulating the supplemental jury instruction and that the district court committed error in rejecting Si’s request for a multiple conspiracy instruction. We conclude that the jury instructions were proper. A During deliberations, the jury asked: “If Si did only a trick, according to your instructions we cannot say he’s guilty of using a firearm. But I believe that is true — a firearm was used for a trick what would be my decision?” The court responded: A candidate for the state senate may receive no more than $1,000 in total combined monetary contributions from all political committees contributing to the candidate’s campaign, and a candidate for the state house of representatives may receive no more than $600 in total combined monetary contributions from all political committees contributing to the candidate’s campaign. The limitations in this section must be multiplied by the inflation factor [defined elsewhere]. The resulting figure must be rounded off to the nearest $50 increment. If you find the government has" }, { "docid": "22885006", "title": "", "text": "was not induced to commit the robbery by the government. A defendant’s entrapment argument is reviewed de novo. United States v. Thickstun, 110 F.3d 1394, 1396 (9th Cir.1997); United States v. Davis, 36 F.3d 1424, 1430 (9th Cir.1994). The defense of entrapment has two elements: (1) government inducement to commit the crime and (2) an absence of predisposition on the part of the defendant to commit the crime. United States v. Poehlman, 217 F.3d 692, 698 (9th Cir.2000). Although we review entrapment as a matter of law de novo, we defer to the credibility findings made by the trial jury, unless “viewing the evidence in the light most favorable to the government, no reasonable jury could have concluded that the defendant ]” was neither induced nor predisposed to commit the charged offenses. Davis, 36 F.3d at 1430. Viewing the evidence in the light most favorable to the government, the jury could find that there was no inducement. The conspiracy was initiated by Si’s inquiry to Hsiung about Hsiung’s knowledge of any places Si could rob. The fact that the government actually provided the robbery target does not amount to inducement. See United States v. Simas, 937 F.2d 459, 462 (9th Cir.1991) (stating that “the offering of an opportunity to commit a crime is not conduct amounting to inducement”). Si argues that he was induced because after a certain point he stopped taking Hsiung and Nguyen’s calls and indicated that he did not want to deal with them. The evidence shows, though, that Si still continued the conspiracy with Lam during the time Si suspended communication with Hsiung and Nguyen. Furthermore, Si independently arranged to have a van rented for the robbery. Sufficient evidence existed to conclude that Si was not induced to commit the conspiracy to rob the truck and its contents. The district court did not err in concluding that Si was not entrapped as a matter of law. VII Si’s next claim is that the supplemental jury instruction eliminated, misstated or omitted an essential element of the crime of conspiracy to commit a robbery that affects interstate commerce." }, { "docid": "22884996", "title": "", "text": "been available during Si’s trial.” Id. at 1045. The district court has responded to our order, finding: Based on all papers filed to date, as well as on the oral and documentary evidence presented at the hearing and the oral argument of counsel, the Court finds that: (1) Si’s language abilities did not impair his comprehension of the proceedings or Si’s ability to communicate with his counsel and the Court and (2) even assuming there had been an im pairment, Si waived his right to an interpreter by failing to take advantage of either of the two (2) Cantonese interpreters which were present throughout the duration of Si’s criminal trial. Although we would ordinarily review the district court’s findings for clear error, see United States v. Lim, 794 F.2d 469, 471 (9th Cir.1986), Si neither made any objections to these findings before the district court nor submitted any objections to this Court. With no objection, we presume the district court’s findings to be correct. On the basis of the district court’s unchallenged first finding — that Si’s abilities to comprehend the proceedings and communicate with his counsel were not impaired by language difficulties — we hold that the district court did not violate Si’s statutory or constitutional rights to an interpreter. So long as Si’s ability to communicate was not inhibited by language problems, appointment of an interpreter was within the district court’s discretion, and “especially in light of [Si’s] failure to [request an interpreter] we cannot say that the court abused its discretion here.” Gonzalez v. United States, 33 F.3d 1047, 1051 (9th Cir.1994). We need not reach the question whether Si waived any right to an interpreter by failing to take advantage of interpreters that were available in the courtroom. Ill On January 5, 2000, Si moved for discovery of information pertaining to Jake Hsiung’s criminal activities and informant activities. The government was ordered to produce the information pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The government produced most of the requested material, including Hsiung’s criminal history and all reports" }, { "docid": "22884998", "title": "", "text": "of Hsiung’s activity as an informant in Si’s case. Nonetheless, the government withheld reports pertaining to Hsiung’s participation as an informant in unrelated, ongoing investigations, and redacted names and identifying information of unrelated individuals from reports about Hsiung’s past criminal activities. The district court subsequently reversed the discovery order to the extent that it required the government to produce anything beyond what it had already produced. Si challenges this reversal on appeal. We review the district court’s decision to allow the government to withhold evidence de novo. United States v. Monroe, 943 F.2d 1007, 1012 (9th Cir.1991). We review the decision to allow the production of redacted documents for clear error. Id. We hold that there was no Brady violation under either standard of review. The Supreme Court has identified the three components of a Brady violation: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Prejudice is shown only if the withheld evidence is material to the defendant’s guilt or punishment, such that “ ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Id. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). A defendant has the burden of showing that withheld evidence is material. United States v. Zuno-Arce, 44 F.3d 1420, 1425 (9th Cir.1995) (“To prove a Brady violation, a defendant must show that the government withheld material exculpatory evidence.”). With respect to the redacted names and identifying information, we cannot conclude that this information is favorable to Si. None of the individuals whose names were redacted were involved in Si’s case, and the redacted information is neither exculpatory nor impeachment evidence. Although Si argued before the district court that the defense might uncover additional impeachment evidence by interviewing" }, { "docid": "22884994", "title": "", "text": "Ha Lam (“Lam”), who also provided the firearms to be used in the robbery. Roderick Macasaet drove the van carrying the crew to the truck that was to be robbed. Lonnie McIntosh and Talmage Jones had the job of restraining the driver of the truck during the robbery. Christopher Chib had the job of driving the truck to the drop off location once it had been robbed. The crew was arrested on February 25, 1999, as they were approaching the location of the targeted truck. Si was also arrested en route to a pre-arranged meeting location. On March 3, 1999, Si and his five co-defendants were charged in a two count indictment for (1) conspiracy to commit a robbery that affects interstate commerce in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and (2) use of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). On March 20, 2000, three co-defendants entered guilty pleas. The next day, one other co-defendant pleaded guilty. After the close of the government’s case-in-chief, the remaining co-defendant pleaded guilty. This left Si as the only remaining defendant. A jury found Si guilty of both charges on April 20, 2000. On February 12, 2001, Si was sentenced to a total of 138 months. Si appeals his judgment and sentence. II In a published order, we addressed Tony Si’s argument that his statutory and constitutional rights to an interpreter at trial were violated. United States v. Si 333 F.Sd 1041 (9th Cir.2003). We stated that the determination whether a party needs an interpreter “is one that should be made on the record by the district court whenever the court is put on notice that there is a potential language difficulty.” Id. at 1044. We remanded the matter to the district court for the purpose of determining “(1) whether Si’s language abilities inhibited his comprehension of the proceedings or his ability to communicate with counsel and the court, and if so, (2) whether Si waived his right to an interpreter by not taking advantage of any interpreter that may have" }, { "docid": "22885017", "title": "", "text": "was the result of sentencing factor manipulation, also known as sentencing entrapment. Sentencing entrapment occurs when a defendant is predisposed to commit a lesser crime, but is entrapped into committing a more significant crime that is subject to more severe punishment because of government conduct. United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir.1994). In order to show sentencing entrapment, a defendant must show that the government engaged in outrageous official conduct which caused the individual to commit a more significant crime for which a greater penalty attaches. United States v. Davis, 36 F.3d 1424, 1433 (9th Cir.1994). Si is precluded from claiming sentencing entrapment because he did not raise the issue before the district court. United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir.1983) (stating that generally “an issue not presented to the trial court cannot be raised for the first time on appeal”). Although Si objected to the court’s loss calculation because Si thought the loss calculation should be based on the $60,000 that Si claims he was going to trick Hsiung and Nguyen out of (and not the $800,000 worth of property which was the target of the theft), Si did not object to the loss calculation on the ground of sentencing entrapment. Si’s failure to object waives his sentencing entrapment argument on appeal. X We AFFIRM the district court’s judgment and sentence. . Si claims that the district court deprived him of a fair trial under the Court Interpreters Act, 28 U.S.C. § 1827, and the United States Constitution, U.S. Const, amends. V and VI. . \"Exceptions to the general rule are recognized where a new theory or issue arises while an appeal is pending because of a change in the law, or where the issue conceded or neglected below is purely one of law and does not affect or rely on the factual record developed by the parties, or where plain error has occurred and injustice might otherwise result.” Whitten, 706 F.2d at 1012 (internal citations omitted). None of these exceptions are present here: there has been no change in the law, the" }, { "docid": "5003199", "title": "", "text": "fraudulently obtaining state identification cards and a credit card. Furthermore, Sistrunk has failed to show how the lack of citation to a specific statute harmed his ability to defend against the alleged violations. Unlike the defendant in Havier, Sistrunk has not described any specific prejudice he suffered by the failure of the government to delineate the statutory violation in the petition. Havier, 155 F.3d at 1094. At oral argument, Sistrunk’s counsel claimed that he could have more vigorously cross-examined the government’s witnesses, however counsel could not clarify any further to the Court what he would have asked had he known which specific statute the government was claiming Sistrunk had violated. Furthermore, after the government specified the statutes, Sistrunk did not seek to reopen the revocation hearing to introduce further evidence or to question the government’s witnesses further. Thus, even if we were to find that the notice was ineffective, under the Ninth Circuit’s holding in Havier, we would still affirm, holding that failure to be harmless error because Sis-trunk did not suffer prejudice. See United States v. Baker, 491 F.3d 421, 424 (8th Cir.2007) (refusing to remand revocation sentence where district court committed harmless error); United States v. Idriss, 436 F.3d 946, 951 (8th Cir.2006) (holding remand for resentencing is inappropriate where defendant did not suffer prejudice because the error is harmless). B. In his second claim on appeal, Sis-trunk argues the government failed to present sufficient evidence to establish a violation of any of the three criminal laws cited by the government. The district court specifically held the evidence was clear and convincing that Sistrunk violated Minnesota Statute § 609.527, subdivision 2, and likely violated other state and federal statutes, including 42 U.S.C. § 408(a)(7) and Minnesota Statute § 171.22. Because we find no error with the district court’s determination that Sistrunk violated Minnesota Statute § 609.527, subdivision 2, it is unnecessary for us to review whether he violated any of the other statutes at issue. Section 609.527 is violated when a person “transfers, possesses, or uses an identity that is not the person’s own, with the intent to" }, { "docid": "22885018", "title": "", "text": "Hsiung and Nguyen out of (and not the $800,000 worth of property which was the target of the theft), Si did not object to the loss calculation on the ground of sentencing entrapment. Si’s failure to object waives his sentencing entrapment argument on appeal. X We AFFIRM the district court’s judgment and sentence. . Si claims that the district court deprived him of a fair trial under the Court Interpreters Act, 28 U.S.C. § 1827, and the United States Constitution, U.S. Const, amends. V and VI. . \"Exceptions to the general rule are recognized where a new theory or issue arises while an appeal is pending because of a change in the law, or where the issue conceded or neglected below is purely one of law and does not affect or rely on the factual record developed by the parties, or where plain error has occurred and injustice might otherwise result.” Whitten, 706 F.2d at 1012 (internal citations omitted). None of these exceptions are present here: there has been no change in the law, the issue neglected below relies on the factual record and plain error resulting in injustice has not occurred because, as discussed above, Si cannot meet the burden of proving sentencing entrapment by a preponderance of the evidence. . Si's failure to object on the basis of sentencing entrapment is waived, rather than forfeited because Si intentionally relinquished his right to object for tactical reasons. United States v. Perez, 116 F.3d 840, 845 (9th Cir.1997) (\"Forfeiture is the failure to make a timely assertion of a right, whereas waiver is the intentional relinquishment or abandonment of a known right.”) (internal quotations omitted). Before sentencing, Si addressed the issue of sentencing entrapment in a letter to the United States Probation Office after reviewing its preliminary PSR. Si chose not to raise a sentencing entrapment objection before the district court, though, choosing instead to argue that the amount for sentencing purposes should be based on the amount Si was trying to trick from the co-conspirators. Compare United States v. Jimenez, 258 F.3d 1120, 1124 (9th Cir.2001) (holding that a" }, { "docid": "15674226", "title": "", "text": "the statement.” Id. at 7. After concluding that Siméis had violated DR 7-104(A)(l), the Committee imposed the sanction of censure. Id. at 8. This appeal followed. DISCUSSION This appeal requires a determination of whether Davis and Harper were “part[ies]” in the same “matter” such that, before talking to Harper, Siméis should have sought permission from Harper’s attorney after learning that counsel had been appointed for Harper. The Committee’s interpretation of DR 7-104(A)(l) as applied to federal criminal proceedings raises important issues of policy affecting federal law enforcement and the ability of defense counsel to provide the effective assistance and zealous representation that the Sixth Amendment and DR 7-101, respectively, guarantee to criminal defendants. We believe that the Committee’s interpretation may well result in broad and unwarranted changes in traditional law enforcement and defense practices and procedures. If such substantial modifications are to be made, they should occur only after careful consideration by the representative branches of the federal government. The conceded power of federal district courts to supervise the conduct of attorneys should not be used as a means to substantially alter federal criminal law practice. Although it may well be that DR 7-104(A)(l) can reasonably be read, as the Committee did, to find that the word “party” is broad enough to encompass the relationship between Davis and Harper, as we view the issues, a narrow interpretation of the Rule is the wiser course for the federal courts to follow. Accordingly, we disagree with the Committee’s expansive interpretation of DR 7-104(A)(l) and, therefore, reverse. In interviewing Harper, Si-méis was interviewing a potential witness in the drug conspiracy case and a potential codefendant of his client in a related but distinct matter, the attempted murder of Diggins. In neither case was Harper a “party” in the same “matter.” A. This Court’s Role When Interpreting a Disciplinary Rule The decision whether to impose disciplinary sanctions on an attorney is usually subject to an abuse-of-discretion standard of review. In re Grievance Committee, 847 F.2d 57, 61 (2d Cir.1988). As both parties acknowledge, however, where the issue presented for our review is the Committee’s" }, { "docid": "22151019", "title": "", "text": "theory that HHS must have regarded Forrisi as substantially limited in his ability to work when the Department found him unable to perform his job at NIEHS. Several courts have previously addressed this issue, deciding unanimously that an employer does not necessarily regard an employee as handicapped simply by finding the employee to be incapable of satisfying the singular demands of a particular job. See de la Torres v. Bolger, 610 F.Supp. 593, 597 (N.D.Tex.1985) (employer regarded employee as left-handed); Tudy-man v. United Airlines, 608 F.Supp. at 746 (employer regarded employee as overweight); E. E. Black, Ltd. v. Marshall, 497 F.Supp. at 1101. The statutory reference to a substantial limitation indicates instead that an employer regards an employee as handicapped in his or her ability to work by finding the employee’s impairment to foreclose generally the type of employment involved. The court in E. E. Black, Ltd. v. Marshall illustrated the conclusion with an example that anticipated Forrisi’s predicament as well as his argument. If the Rehabilitation Act extended to all individuals who have been rejected from a particular job because of a perceived inability to perform that job, the court reasoned, the Act would cover an individual with acrophobia “who was offered 10 deputy assistant accountant jobs with a particular company, but was disqualified from one job because it was on the 37th floor.” 497 F.Supp. at 1099. The court found that any such interpretation would contravene the exclusive statutory concern for substantial limitations, whether genuine or perceived. We agree both with this theoretical position and with its application to the problem of acrophobia. HHS never doubted Forri-si’s ability to work in his chosen occupation of utility systems repair. The Department merely saw him as unable to exercise his acknowledged abilities above certain altitudes in this NIEHS plant. The district court noted that plaintiff “had no difficulty in obtaining other jobs in his field prior to this one, and defendant’s uncontroverted allegation is that plaintiff is currently employed once again as an engineer.” Forri-si v. Heckler, 626 F.Supp. 629, 632 (M.D.N. C.1985). The record demonstrates that the employer’s perception" }, { "docid": "22885008", "title": "", "text": "In addition, Si claims that the district court abused its discretion in formulating the supplemental jury instruction and that the district court committed error in rejecting Si’s request for a multiple conspiracy instruction. We conclude that the jury instructions were proper. A During deliberations, the jury asked: “If Si did only a trick, according to your instructions we cannot say he’s guilty of using a firearm. But I believe that is true — a firearm was used for a trick what would be my decision?” The court responded: A candidate for the state senate may receive no more than $1,000 in total combined monetary contributions from all political committees contributing to the candidate’s campaign, and a candidate for the state house of representatives may receive no more than $600 in total combined monetary contributions from all political committees contributing to the candidate’s campaign. The limitations in this section must be multiplied by the inflation factor [defined elsewhere]. The resulting figure must be rounded off to the nearest $50 increment. If you find the government has proved beyond a reasonable doubt that the defendant conspired to commit a robbery (under my instructions), the fact that you find that he also intended to trick the money, which was otherwise to be used to pay the robbery crew, would not be a defense. If you find that the government did not prove beyond a reasonable doubt that he conspired to commit a robbery, you should ignore count 2[of use of a firearm in furtherance of a crime of violence]. Mr. Si is not charged with the use of a firearm in relationship in an attempt to steal or (trick) money. The only circumstance under which you should consider count 2 is if you find him guilty of conspiracy to commit robbery in count 1. Please let me know if you have any further questions in this regard. Si’s counsel objected to the entire supplemental instructions generally and to the first paragraph specifically for compromising Si’s defense. Si’s counsel claims that the district court committed reversible error by leaving out the mens rea requirement," }, { "docid": "22439002", "title": "", "text": "appellants to design around the prospective patents, is Si’s trade secret. We see no defect in the district court’s conclusion. See Milgrim § 2.06[2], Methods developed by appellants, while they were still in Si’s employ, for achieving car-to-car accumulation without infringing on the Jacoby patent. Documentary evidence showed that as early as April 1982 “the ROBOTRAC team” (then including three SI engineers) had reviewed with patent counsel accumulation devices that would not infringe on Si’s patent. The district court determined that the accumulation configuration used on ROBOTRAC prototypes was Si’s property and trade secret. Appellants argue that, unlike the developments reflected in the pending patent applications, the Jacoby patent has been issued and the mechanism, fully disclosed, and SI may not extend its legal monopoly to the point of preventing others from designing noninfringing devices that do the same job. We agree, see also Sims v. Mack Truck Corp., supra, 488 F.Supp. at 599, but note that the district court’s theory with regard to this trade secret was actually somewhat different. The district court was concerned that the design of the noninfringing devices had occurred while appellants were under contract to turn their developments over to SI. Thus, these developments stand on the same legal footing as the two-way accumulation system discussed previously. For the same reasons given there, we do not think appellants’ method of achieving car-to-car accumulation without infringing the Jacoby patent can be protected as Si’s trade secret, though SI may well have other remedies for this breach of duty. Si’s CARTRAC costing and pricing information. Apparently the district court rejected Si’s contention that the formulae it uses in pricing its systems are trade secrets, but agreed that the numbers SI actually uses are trade secrets that appellants have misappropriated. As we understand the district court’s finding, subsumed under “costing” and “pricing” information is a whole range of data relating to materials, labor, overhead, and profit margin, among other things. Thus, unlike the price of bearings, this is not information that is readily obtainable by anyone in the industry. We believe such information qualifies for trade secret" }, { "docid": "5003198", "title": "", "text": "an element of the crime.” Id. Based on the defense strategy presented by Havier and the shift in strategy he would have employed had he been put on notice of the disorderly conduct charge, the Ninth Circuit held that failure to provide the adequate notice caused prejudice and, therefore, could not be considered harmless error. Id. We have not addressed the question of what specific information is required in the notice. While citation to the alleged statutory violation would have been beneficial and is likely the better practice, we hold that it is not a requirement. Morrissey and Rule 32.1 require that the defendant receive effective notice of the alleged violation to meet due process mandates. See Fed.R.Crim.P. 32.1; Morrissey, 408 U.S. at 486-87, 92 S.Ct. 2593. For notice to be effective, it need only assure that the defendant understands the nature of the alleged violation. Here, the petition for revocation of supervised release provides extensive factual allegations that were sufficient to put Sis-trunk on notice that he would have to defend against crimes of fraudulently obtaining state identification cards and a credit card. Furthermore, Sistrunk has failed to show how the lack of citation to a specific statute harmed his ability to defend against the alleged violations. Unlike the defendant in Havier, Sistrunk has not described any specific prejudice he suffered by the failure of the government to delineate the statutory violation in the petition. Havier, 155 F.3d at 1094. At oral argument, Sistrunk’s counsel claimed that he could have more vigorously cross-examined the government’s witnesses, however counsel could not clarify any further to the Court what he would have asked had he known which specific statute the government was claiming Sistrunk had violated. Furthermore, after the government specified the statutes, Sistrunk did not seek to reopen the revocation hearing to introduce further evidence or to question the government’s witnesses further. Thus, even if we were to find that the notice was ineffective, under the Ninth Circuit’s holding in Havier, we would still affirm, holding that failure to be harmless error because Sis-trunk did not suffer prejudice. See United" }, { "docid": "22885009", "title": "", "text": "proved beyond a reasonable doubt that the defendant conspired to commit a robbery (under my instructions), the fact that you find that he also intended to trick the money, which was otherwise to be used to pay the robbery crew, would not be a defense. If you find that the government did not prove beyond a reasonable doubt that he conspired to commit a robbery, you should ignore count 2[of use of a firearm in furtherance of a crime of violence]. Mr. Si is not charged with the use of a firearm in relationship in an attempt to steal or (trick) money. The only circumstance under which you should consider count 2 is if you find him guilty of conspiracy to commit robbery in count 1. Please let me know if you have any further questions in this regard. Si’s counsel objected to the entire supplemental instructions generally and to the first paragraph specifically for compromising Si’s defense. Si’s counsel claims that the district court committed reversible error by leaving out the mens rea requirement, which thereby freed the government of its burden of proving each element of the charge beyond a reasonable doubt. B Whether supplemental jury instructions given in response to a jury request for clarification correctly state the elements of an offense is reviewed de novo. United States v. Gergen, 172 F.3d 719, 724 (9th Cir.1999). On appeal, we also review the district court’s formulation of jury instructions in response to jury requests for clarification for abuse of discretion. United States v. Amlani, 111 F.3d 705, 716 (9th Cir.1997). C The district court did not excise the mens rea requirement from the jury instructions. The district court’s original jury instructions stated that Si must become a conspirator member “knowing at least of its objectives and intending to help accomplish it” and by “willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy.” The supplemental jury instructions did not conflict with the original jury instructions. Nor did they supersede the original jury instructions. Rather, the supplemental jury instructions" }, { "docid": "22884995", "title": "", "text": "government’s case-in-chief, the remaining co-defendant pleaded guilty. This left Si as the only remaining defendant. A jury found Si guilty of both charges on April 20, 2000. On February 12, 2001, Si was sentenced to a total of 138 months. Si appeals his judgment and sentence. II In a published order, we addressed Tony Si’s argument that his statutory and constitutional rights to an interpreter at trial were violated. United States v. Si 333 F.Sd 1041 (9th Cir.2003). We stated that the determination whether a party needs an interpreter “is one that should be made on the record by the district court whenever the court is put on notice that there is a potential language difficulty.” Id. at 1044. We remanded the matter to the district court for the purpose of determining “(1) whether Si’s language abilities inhibited his comprehension of the proceedings or his ability to communicate with counsel and the court, and if so, (2) whether Si waived his right to an interpreter by not taking advantage of any interpreter that may have been available during Si’s trial.” Id. at 1045. The district court has responded to our order, finding: Based on all papers filed to date, as well as on the oral and documentary evidence presented at the hearing and the oral argument of counsel, the Court finds that: (1) Si’s language abilities did not impair his comprehension of the proceedings or Si’s ability to communicate with his counsel and the Court and (2) even assuming there had been an im pairment, Si waived his right to an interpreter by failing to take advantage of either of the two (2) Cantonese interpreters which were present throughout the duration of Si’s criminal trial. Although we would ordinarily review the district court’s findings for clear error, see United States v. Lim, 794 F.2d 469, 471 (9th Cir.1986), Si neither made any objections to these findings before the district court nor submitted any objections to this Court. With no objection, we presume the district court’s findings to be correct. On the basis of the district court’s unchallenged first finding —" }, { "docid": "22885014", "title": "", "text": "instructions almost identical to the ones in this case were given). The district court’s jury instructions were proper. VIII Si says that the district court erred in imposing an upward adjustment to his sentence based on Si’s role in the offense. The district court determined that Si was an organizer and leader of the Hobbs Act conspiracy and imposed a four offense level increase to his sentence pursuant to U.S.S.G. § 3B1.1(a) (2000). We review for clear error the application of an upward adjustment based on leadership status. United States v. Kubick, 205 F.3d 1117, 1127 (9th Cir.1999). The sentencing guidelines provide that a defendant’s sentence will be increased “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3Bl.l(a). In assessing whether a defendant is an organizer or leader, we consider the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. U.S.S.G. § 3Bl.l(a), Application Note 4. Si claims that he had absolutely no control or authority over any other individual involved in the commission of the offense, and that an upward adjustment should not apply. This argument flies in the face of evidence that Si exercised control and authority over the crew by determining when and how much to pay the crew. In addition, the other factors indicate that Si was a leader. Si decided how the robbery would occur and gave instructions to Lam to communicate to the crew. Si initiated the idea of the robbery when he first ran into Hsiung and Si offered to provide the crew for the job. Si stood to receive a larger share of the profits than some of the co-conspirators; while the crew expected to receive $85,000 in total, Si expected to receive one-third of" } ]

[ { "docid": "1623101", "title": "", "text": "citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” This statute “supplies a private right of action against a person who, under color of state law, deprives another of rights secured by the Constitution or by federal law.” Evans v. Avery, 100 F.3d 1033, 1036 (1st Cir.1996). For section 1983 purposes, Puerto Rico is deemed equivalent to a state. See Martínez v. Colón, 54 F.3d 980, 984 (1st Cir.1995). The plaintiff centers his primary section 1983 claim on the allegation that the defendants unlawfully deprived him of his rights in the Property without just compensation. Their conduct, he alleges, constituted a de facto confiscation and thereby violated the Takings Clause. See U.S. Const, amend. V (prohibiting the taking of private property for public use without just compensation). The initial hurdle is easily cleared: the defendants are alleged to have acted under color of Puerto Rico law, and the Takings Clause applies unreservedly to the Commonwealth of Puerto Rico. Tenoco Oil Co. v. Dep’t of Consumer Affairs, 876 F.2d 1013, 1017 n. 9 (1st Cir.1989). Once past this point, however, insurmountable obstacles loom. Chief among them is the question of ripeness. That question arises out of the plaintiffs decision to pursue his takings claims directly in federal court. The Supreme Court has explained that: The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation. Nor does the Fifth Amendment require that just compensation be paid in advance of, or contemporaneously with, the taking; all that is required is that a “reasonable, certain, and adequate provision for obtaining compensation” exist at the time of the taking. Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (citations omitted). Thus, a takings claim ordinarily is considered unripe if the claimant comes directly to a federal court without first seeking compensation through state procedures. Id. at 194-95, 105 S.Ct. 3108. To be sure, this rule — like most rules —" } ]

[ { "docid": "149743", "title": "", "text": "law. DISCUSSION Adequate State Remedies Appellants’ principal claim is that the County deprived them of access to their property, constituting a taking “without substantive due process” in violation of the fifth amendment. In Williamson County Regional Planning Commission v. Ham ilton Bank, — U.S. -, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Supreme Court held that a property owner must exhaust state procedures for obtaining just compensation, including resort to a state inverse condemnation action, before bringing a “taking” claim under 42 U.S.C. § 1983. Id. 105 S.Ct. at 3121-22. The Court reasoned that the fifth amendment does not prohibit takings, only uncompensated takings. “[Bjecause the Constitution does not require pretaking compensation, and is instead satisfied by a reasonable and adequate provision for obtaining compensation after the taking, the State’s action here is not ‘complete’ until the State fails to provide adequate compensation for the taking.” Id. (footnote omitted). Thus, “if a State provides an adequate remedy for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” Id. at 3121. Florida law provides compensation for deprivation or impairment of the right of access, Anhoco Corp. v. Dade County, 144 So.2d 793 (Fla.1962), which may be enforced in an action for inverse condemnation, see, e.g., Pinellas County v. Austin, 323 So.2d 6 (Fla.Dist.Ct.App.1975). Appellants have not shown that the Florida procedures were unavailable or inadequate; until they have utilized those procedures, their taking claim is premature. Substantive Due Process Appellants’ complaint specifically alleged that the County’s decision to discontinue ferry service to Dog Island denied them substantive due process and requested that the court affirmatively require Franklin County to reinstate the ferry service. [U]nder [the substantive due process] theory government regulation does not effect a taking for which the Fifth Amendment requires just compensation; instead, regulation that goes so far that it has the same effect as a taking by eminent domain is an invalid exercise of the police power, violative of the Due Process Clause of the Fourteenth Amendment. Should the Government" }, { "docid": "15419573", "title": "", "text": "plaintiffs’ taking claim is not ripe for adjudication at the present time. The Fifth Amendment to the United States Constitution provides, inter alia, “nor shall private property be taken for public use, without just compensation.” As the Supreme Court pointed out in Williamson County, the Fifth Amendment does not proscribe the taking of property, rather it only proscribes taking without just compensation. Id., 105 S.Ct. at 3121. So long as the State provides an adequate procedure for obtaining just compensation, the aggrieved landowner may not claim a denial of just compensation until he/she has exhausted the State procedures for compensation. Id. The nature of the constitutional right, therefore, requires that a property owner first utilize procedures under state law for obtaining compensation before he/she can bring a § 1983 action. Id. at n. 13. Plaintiffs in this case have not utilized the available State procedures for obtaining just compensation. The Georgia Supreme Court has sanctioned the remedy known as inverse condemnation under which a landowner can bring an action for damages in State court to remedy an uncompensated or unlawful taking. See Fulton County v. Baranan, 240 Ga. 837, 838, 242 S.E.2d 617, 619 (1978). The damages recoverable in an inverse condemnation action are a substitution for the damages recoverable in a condemnation action. Id. Because the plaintiffs in this case have failed to pursue their remedy under State law for a claim of inverse condemnation, their claim for taking without just compensation is not ripe for adjudication. Substantive Due Process Plaintiffs’ complaint also alleges a claim based upon the substantive due process clause of the Fifth and Fourteenth Amendments. Plaintiffs allege that the County’s decision to amend the zoning ordinance at issue denied them substantive due process since the ordinance is totally unnecessary and bears no substantial relation to the public health, safety, morality and general welfare. Plaintiffs, therefore, seek this court to enjoin the enforcement of that ordinance, and to restore the less restrictive zoning ordinance in effect prior to the amendment in 1984. The substantive due process doctrine proscribes “deprivation of a property interest for an improper" }, { "docid": "16381502", "title": "", "text": "(1975) (explaining that “inverse” condemnation actions are so-named because they are initiated by the property owner, not by the government) (translation ours). Inverse condemnation actions in Puerto Rico are governed by the same norms and principles as condemnation actions brought directly by the Puerto Rico government. Olivero v. Autoridad de Carreteras, 1978 WL 48858 at *4 (P.R.1978). Given that Puerto Rico has adequate procedure in place through which the Plaintiffs can seek just compensation, it is this local process that should have been the Plaintiffs’ first resort with respect to their takings challenge. Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (“[I]f a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.”); Garay-Medina v. P.R. Highway and Transp. Auth., 2005 WL 1641257 at *2 (D.P.R. July 8, 2005) (“Before filing a lawsuit alleging an unlawful or uncompensated taking, a plaintiff is bound first to pursue the state inverse condemnation remedy provided by Puerto Rico law.”). Because neither Plaintiffs’ complaint nor the court record indicate that the Plaintiffs have pursued this remedy under Puerto Rico law, their § 1983 takings claim is premature and unripe for adjudication before a United States District Court. Williamson County, 473 U.S. at 195, 105 S.Ct. 3108; Culebras Enter. Corp. v. Rivera Rios, 813 F.2d 506, 513 (1st Cir.1987) (Plaintiffs must first pursue the Commonwealth’s inverse condemnation remedy before they can bring a federal damages claim since, “when fleshed out by the local court, that remedy could well provide the ‘certain and adequate’ relief’ it seeks.). We, therefore, dismiss it for lack of subject matter jurisdiction. Apart from their § 1983 Due Process claim, which as we have just established implicates the Takings Clause and must be dismissed as unripe, Plaintiffs have also invoked the Takings Clause directly to ask this court to issue a mandamus ordering the PRFC to convene a just compensation hearing. This portion of Plaintiffs’" }, { "docid": "996837", "title": "", "text": "private property for public use; it simply requires that individuals are given just compensation when their property is taken. Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Plaintiffs claim that because Defendants have no intention of voluntarily returning the seized property, the seizure is actionable as a permanent physical taking requiring just compensation. (R. 17, Pis.’ Mot. at 12.) Plaintiffs seek the return of their property plus interest, which only qualifies as “just compensation” under the broadest possible construction of the Amended Complaint. They are not entitled to this broad interpretation because in addition to recovering their property, Plaintiffs request the discontinuance of Defendants’ alleged policy of “taking” arrestees’ property. The Fifth Amendment does not afford this type of relief. Williamson County, 473 U.S. at 194, 105 S.Ct. 3108. Even if we were to construe Plaintiffs’ request for relief as a request for just compensation, it is well-settled that a property owner cannot state a claim in federal court under the Fifth Amendment until he has pursued state procedures for seeking just compensation. Id. at 194, 105 S.Ct. 3108; Gamble v. Eau Claire County, 5 F.3d 285, 286 (7th Cir.1993). Illinois law provides a remedy to those whose property is wrongfully taken by the government. Until these state remedies are pursued, Plaintiffs “cannot know whether [they have] suffered the only type of harm for which the just-compensation provision of the Constitution entitles [them] to a remedy.” Gamble, 5 F.3d at 286. Plaintiffs have not demonstrated that they have pursued these remedies, let alone exhausted them. Finally, were we to find that the alleged facts constitute a government taking, we would have to dismiss Plaintiffs’ procedural due process claim. The Seventh Circuit has made clear that, where due process claims are based on the same facts as a takings claim, the Williamson County exhaustion requirement applies to the due process claims “with full force.” Greenfield Mills, Inc. v. Macklin, 361 F.3d 934, 961 (7th Cir.2004); Hager v. City of W. Peoria, 84 F.3d 865, 869 (7th Cir.1996)." }, { "docid": "19883491", "title": "", "text": "D. Takings Clause Verdict The jury entered a verdict for plaintiffs on their takings clause claims and awarded $80,000 per plaintiff. The District Court reversed this verdict, finding no takings occurred because at all times plaintiffs continued to reside in their homes. Hence, there was no deprivation. The District Court noted that if a taking had occurred “plaintiffs would have been entitled to pursue remedies under the state eminent domain statute.... ” Chainey, 2005 WL 3263042, at *4. Plaintiffs contend we should reinstate both the verdict and the damage award because they proved defendants deprived them of all economically viable uses of their property. They contend they have no remedy under the state eminent domain code because the city’s actions “poisoned the market” for their homes. The takings claims are not ripe because plaintiffs never pursued their takings clause claims in state court. A plaintiff must first “seek compensation through the procedures the State has provided for doing so” before asserting a federal takings claim. Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). In Williamson, after the plaintiff purchased land to develop residential housing, defendant-county adopted a zoning ordinance restricting the permissible density. Plaintiff alleged a taking, claiming he was deprived of all economically viable use of the land. Id. at 177-83, 105 S.Ct. 3108. The Court rejected plaintiffs claim because, as yet, there had been no denial of just compensation. Construing the Fifth Amendment (“[N]or shall private property be taken for public use, without just compensation.”), the Court explained the “Fifth Amendment does not proscribe the taking of property;” instead, it only “proscribes takings without just compensation.” Id. at 194 & n. 13, 105 S.Ct. 3108 (emphasis in original). The Fifth Amendment does not require at the time of the taking that just compensation be paid, but only that a “reasonable, certain and adequate provision for obtaining compensation exist.” Id. at 194, 105 S.Ct. 3108 (citations omitted). Accordingly, if there is an adequate provision for compensation, “no constitutional violation occurs until just compensation has been" }, { "docid": "20826343", "title": "", "text": "without just compensation.” U.S. Const, amend. Y. Due to the haphazard nature of the allegations of Plaintiffs Complaint, the scope of Plaintiffs Fifth Amendment claim is not entirely clear. However, to the extent Plaintiff claims that Defendants violated his due process rights under the Fifth Amendment, it is clear that the Due Process Clause of the Fifth Amendment applies only to acts committed by the United States and any such claim is therefore DISMISSED. Castanza, 700 F.Supp.2d at 288 (“[T]he Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without ‘due process of law.’ ” (quoting Dusenbery v. United States, 534 U.S. 161, 167, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002))). In addition, to the extent that Plaintiff alleges that Defendants took his property without just compensation, it appears that such claim is not ripe for judicial review. To state a takings claim under § 1983, a plaintiff must allege (1) a property interest, (2) that has been taken under color of state law, (3) without just compensation. Burke v. Town of E. Hampton, No. 99-CV-5798, 2001 WL 624821, at *10 (E.D.N.Y. Mar. 16, 2001) (citation omitted). With respect to the third element, a plaintiff “must allege that [he] exhausted state procedures for obtaining just compensation.” Id. (internal quotation marks and citation omitted). The United States Supreme Court has stated that where “a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” Williamson County Reg'l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 195, 105 S.Ct. 3108, 3121, 87 L.Ed.2d 126 (1985). As such, Plaintiff was required to “first seek compensation from the state if the state has a ‘reasonable, certain and adequate provision for obtaining compensation.’ ” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 379-80 (2d Cir.1995) (quoting Williamson, 473 U.S. at 194, 105 S.Ct. 3108); see also Frooks v. Town of Cortlandt," }, { "docid": "16272601", "title": "", "text": "seeking just compensation are available under Puerto Rico law. See Deniz v. Mun. of Guaynabo, 285 F.3d 142, 146-47 (1st Cir.2002) (concluding that Puerto Rico case law recognizes an inverse condemnation remedy by which property owners can seek just compensation). Because the Developers have not sought just compensation through those state law procedures, their complaint does not state a valid federal takings claim. See id. at 149 (“A plaintiffs failure to exhaust the inverse condemnation remedy renders premature a section 1983 damages action predicated upon an alleged takings violation.”). B. Procedural Due Process Claim To establish a procedural due process claim under § 1983, a plaintiff “must allege first that it has a property interest as defined by state law and, second, that the defendants, acting under col- or of state law, deprived it of that property interest without constitutionally adequate process.” PFZ Prop., 928 F.2d at 30. Here, the Developers assert that the Planning Board violated their procedural due process rights when it determined that the land use permit had expired and revoked it without notice or a hearing. That assertion is misguided. If the Developers have a property interest in the land use permit (we assume arguendo that they do), the post-deprivation process available to them under Puerto Rico law is a constitutionally adequate protection for that interest. The Developers do not challenge the adequacy of the permitting procedures established by Puerto Rico law. Instead, they allege that the Planning Board illegally revoked their land use permit without jurisdiction to do so. We rejected an analogous due process claim in PFZ Properties, explaining that in this context, our focus is on the availability of post-deprivation, rather than pre-deprivation, process: When a deprivation of property results from conduct of state officials violative of state law, the Supreme Court has held that failure to provide pre-deprivation process does not violate the Equal Protection Clause.... The state is not required to anticipate such violations of its own constitutionally adequate procedures. To hold otherwise would convert every departure from established administrative procedures into a violation of the Fourteenth Amendment, cognizable under §" }, { "docid": "10330700", "title": "", "text": "are too vague to support a conspiracy claim; (4) the CDA municipal officials are absolutely immune from suit for results arising from their legislative acts. “To state a takings claim under section 1983, a plaintiff must show (1) a property interest (2) that has been taken under color of state law (3) without just compensation.” Frooks v. Tovm of Cortlandt, 997 F.Supp. 438, 452 (S.D.N.Y.1998) (citation omitted). “With respect to the third element, the plaintiffs must allege that they exhausted state procedures for obtaining just compensation.” Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). As the Supreme Court explicitly stated in Williamson, “[i]f a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” 473 U.S. at 195, 105 S.Ct. 3108. a. Ripeness Here, the plaintiffs were required to “first seek compensation from the state if the state has a ‘reasonable, certain and adequate provision for obtaining compensation.’ ” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 379-80 (2d Cir.1995), cert. denied, 519 U.S. 808, 117 S.Ct. 50, 136 L.Ed.2d 14 (1996) (quoting Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. at 194, 105 S.Ct. 3108, 87 L.Ed.2d 126); see also Frooks, 997 F.Supp. at 453 (stating that “a ‘taking’ is not “without just compensation’ under section 1983 unless a plaintiff has exhausted all state remedies that may provide just compensation”). The State of New York has established remedies for just compensation claims, under the New York EDPL § 101 et seq. and Article 78, that meet all constitutional requirements. See Hellenic American Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir.1996) (Article 78 proceeding is “perfectly adequate postdeprivation remedy in ... situations” involving property interests): Frooks, 997 F.Supp. at 452 (holding that the EDPL meets all constitutional requirements). b. Protectable Property Interest With respect to the creation of a property interest, the Supreme Court has explained that:" }, { "docid": "5281540", "title": "", "text": "and state interests has changed with intermediate developments in state court precedent, “continued abstention at this point would be inappropriate.” Front Royal, 135 F.3d at 283. C. We next address whether the district court properly abstained from deciding the Toloczkos’ claim under 42 U.S.C. § 1983 alleging due process and equal protection violations (counterclaim sixteen). We conclude that the district court need not abstain. While this constitutional claim intersects with the Town’s land use and zoning laws, it is not merely “state law in federal law clothing.” Johnson v. Collins Entm’t Co., 199 F.3d 710, 721 (4th Cir.1999). We also agree with the Tolocz-kos that a court need not define the geographical reach of the public trust doctrine to resolve their constitutional claim. In fact, the district court decided an analogous claim in Sansotta without offense to North Carolina’s land use or zoning law. We are confident the court can do the same here. III. Finally, we review the district court’s dismissal of the Toloczkos’ regulatory takings claim and its decision to stay the inverse condemnation claim (counterclaims eighteen and nineteen). The To-loczkos allege here that the Town stripped their property of all viable economic use by declaring their cottage a nuisance and forbidding the issuance of any permits to repair the structure. The Fifth Amendment forbids the taking of private property “for public use, without just compensation.” U.S. Const, amend. V. The Takings Clause applies to the states, see Chicago, B & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897), and to takings in the form of government regulations that effectively deprive a property of all economic value, see Henry v. Jefferson Cnty. Comm’n, 637 F.3d 269, 276 (4th Cir.2011). “It is also clear that temporary, but total, regulatory takings are compensable.” Front Royal, 135 F.3d at 285. However, where “a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson" }, { "docid": "20826344", "title": "", "text": "that has been taken under color of state law, (3) without just compensation. Burke v. Town of E. Hampton, No. 99-CV-5798, 2001 WL 624821, at *10 (E.D.N.Y. Mar. 16, 2001) (citation omitted). With respect to the third element, a plaintiff “must allege that [he] exhausted state procedures for obtaining just compensation.” Id. (internal quotation marks and citation omitted). The United States Supreme Court has stated that where “a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” Williamson County Reg'l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 195, 105 S.Ct. 3108, 3121, 87 L.Ed.2d 126 (1985). As such, Plaintiff was required to “first seek compensation from the state if the state has a ‘reasonable, certain and adequate provision for obtaining compensation.’ ” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 379-80 (2d Cir.1995) (quoting Williamson, 473 U.S. at 194, 105 S.Ct. 3108); see also Frooks v. Town of Cortlandt, 997 F.Supp. 438, 452 (S.D.N.Y.1998) (stating that “a ‘taking’ is not “without just compensation’ under section 1983 unless a plaintiff has exhausted all state remedies that may provide just compensation”), aff'd, 182 F.3d 899 (2d Cir.1999). The State of New York provides remedies for just compensation claims under New York Eminent Domain Procedure Law § 101, et seq., and Article 78 of the New York Civil Practice Law and Rules, both of which satisfy all constitutional requirements. Burke, 2001 WL 624821, at *11. Here, Plaintiff has not alleged exhaustion of his New York State remedies that may provide just compensation. Accordingly, to the extent Plaintiff asserts a takings claim, it is not ripe for adjudication by the Court at this time and is therefore DISMISSED. See Viteritti v. Inc. Vill. of Bayville, 831 F.Supp.2d 583, 591 (E.D.N.Y.2011) (“Courts within the Second Circuit have uniformly dismissed Fifth Amendment takings claims at the pleadings stage when plaintiffs fail to sufficiently allege that they have availed themselves of such state procedures.”) (collecting eases). 2. Eighth Amendment The text" }, { "docid": "11700199", "title": "", "text": "1983, alleging violations of his rights under the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution. The district court dismissed all of plaintiffs claims against the city. It ruled that it could not consider Cormack’s claims under the Fifth and Fourteenth Amendments because Cormack had not exhausted his remedies under state law. It dismissed his Fourth Amendment claim without prejudice under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and his First Amendment claim for failure to state a valid claim. Holding that the individual defendants were entitled to qualified immunity, the court also dismissed plaintiffs claims against them. Cormaek appeals. We review the grant of a motion to dismiss de novo, taking all well pleaded factual allegations in the complaint as true and making all reasonable inferences in favor of the plaintiff. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990). Cormaek has not raised any First Amendment argument on appeal so it is waived, see Hacker v. Barnhart, 459 F.3d 934, 937 n. 2 (8th Cir.2006), and we turn to his claim under the Fifth Amendment. He argues that Van Buren’s annexation of his property and enforcement of its ordinance prohibiting the sale of fireworks amounted to a regulatory taking. Although under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), federal courts are barred from considering the merits of a takings claim until a private litigant exhausts state remedies, Cormaek believes that an exception applies to this case. If a state’s remedies are inadequate or unavailable, exhaustion is not required, see id. at 196-97, 105 S.Ct. 3108, and Cormack claims that Arkansas has no remedy which would adequately compensate him for the taking. This exception to Williamson County is narrow, and the claimant bears the “heavy burden” of showing that the state remedy is inadequate. Deniz v. Municipality of Guaynabo, 285 F.3d 142, 146 (1st Cir.2002). We have been unable to find a case in which this court has declared a state’s inverse condemnation procedures to be" }, { "docid": "7010536", "title": "", "text": "a taking in violation of their Fifth Amendment rights as incorporated against the states through the Fourteenth Amendment. Second, they claim that their Fourteenth Amendment substantive due process rights were violated by the defendants’ actions. Third, they claim that their Fourteenth Amendment procedural due process rights were similarly violated. We will address each of these in turn. I. Fifth Amendment Takings Claim The plaintiffs claim that the defendants violated their Fifth Amendment rights by “taking” the plaintiffs’ homes from them. The district court dismissed this claim on the grounds that it was not yet ripe for review. We agree. The Fifth Amendment does not prohibit the government from taking its citizens’ property; it merely prohibits the government from taking property without paying just compensation. U.S. Const, amend. V. Before a federal court can properly determine whether the state has violated the Fifth Amendment, the aggrieved property owner must show first that the state deprived him of his property, and second, that the state refused to compensate him for his loss. See Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-97, 105 S.Ct. 3108, 3120-22, 87 L.Ed.2d 126 (1985). In those states that allow aggrieved property owners to bring an inverse condemnation action in order to recover compensation for property taken by the state, a Fifth Amendment takings claim is not ripe until the aggrieved property owner “has used the procedure and been denied just compensation.” Id. at 195, 105 S.Ct. at 3121. In the instant case, the plaintiffs have pending under Wyoming law an inverse condemnation action to recover compensation for the loss of their homes. Appellee's Br. at 13. Because the plaintiffs have not yet been turned away empty-handed, it is not clear whether their property has been taken without just compensation. Therefore, under Williamson County, we affirm the district court holding that plaintiffs Fifth Amendment takings claim is not yet ripe for review in federal court. II. Due Process Claims In addition to invoking the Just Compensation Clause of the Fifth Amendment, the plaintiffs contend that the defendants’ actions violated their Fourteenth" }, { "docid": "8042435", "title": "", "text": "quieting title in the Kruses to the property that the Village continues to use, but granting the Kruses neither money damages to compensate them for their loss nor injunctive relief to prevent the Village’s continuing trespass on their property. Because the Village refused to pay compensation for its appropriation of their property, the Kruses filed this lawsuit, seeking relief under 42 U.S.C. §§ 1983 and 1988 for the Village’s violation of their rights under the Fifth and Fourteenth Amendments to the United States Constitution. Count II of the Kruses’ complaint sought monetary relief for severe emotional and mental distress caused by the Village’s taking and destroying their property without notice and an opportunity to be heard pursuant to the Ohio state statutes relative to appropriation of private property for municipal use. The Village filed its motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6), arguing that the plaintiffs “did not file an action in state court seeking money damages for Chagrin Falls’ alleged taking of their property without just compensation,” that “[tjheir trespass action did not constitute an inverse condemnation action” and that “their ‘taking’ claim is not ripe for federal review.” The district court opined that landowners in Ohio have a remedy for uncompensated takings of property for public use through inverse condemnation proceedings. Relying on Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the court held that “because plaintiffs have failed to avail themselves of the state procedure for recovering just compensation, and because they have failed to show that this procedure is inadequate,” their constitutional due process and § 1983 claims were premature and, consequently, the court lacked jurisdiction. Since it had dismissed the federal claims, the court declined to exercise pendent jurisdiction over the state-law claim for mental-distress damages, dismissing that claim without prejudice to refiling in state court. This timely appeal followed. II. We review de novo the district court’s dismissal of claims for lack of subject-matter jurisdiction. Kroll v. United States, 58 F.3d 1087, 1090 (6th Cir.1995). The Village" }, { "docid": "22471976", "title": "", "text": "jurisdiction over them. The plaintiffs filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291. II. DISCUSSION A motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6) may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to plaintiff, the plaintiff is not entitled to relief. See Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir.2000). We have plenary review of a district court’s dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(6). See id. We review a district court’s refusal to allow a party to amend its complaint for abuse of discretion. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997). A. Takings Claim The plaintiffs allege that the Township and various township officials violated the Takings Clause by imposing two municipal liens that impaired the value of the plaintiffs’ properties and deprived them of their right to full control of their properties. The District Court ruled that the takings claim was not yet ripe because the plaintiffs had not yet availed themselves of the state procedures for seeking just compensation. In the alternative, the court held that the defendants’ alleged actions did not rise to the level of a taking. The Fifth Amendment proscribes the taking of private property for public use without just compensation. See U.S. Const, amend. V. It is well-recognized that this prohibition applies to state and local governments under the Fourteenth Amendment. See Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 41 L.Ed. 979 (1897). The Supreme Court has recognized that just compensation need not be paid in advance of the taking' — “all that is required is that a reasonable, certain and adequate provision for obtaining compensation exist at the time of the taking.” Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (quotation omitted). Therefore, if a state has provided an adequate procedure for seeking just compensation and a landowner" }, { "docid": "16272600", "title": "", "text": "in the instant case.” SFW Arecibo, Ltd. v. Rodriguez, No. 03-1970 (D.P.R. Sept. 22, 2004). II. We review a district court’s grant of a motion to dismiss de novo. Greene v. Rhode Island, 398 F.3d 45, 48 (1st Cir.2005). In so doing, we accept as true the well-pleaded factual allegations of the complaint, drawing all reasonable inferences in the non-movants’ favor. Id. A. Takings Claim The Developers assert that the Planning Board’s erroneous determination that their permit expired without the commencement of actual and effective construction amounted to a taking of private property without just compensation, thereby violating the Fifth and Fourteenth Amendments to the United States Constitution. This claim is premature. It is well-settled that “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Adequate procedures for seeking just compensation are available under Puerto Rico law. See Deniz v. Mun. of Guaynabo, 285 F.3d 142, 146-47 (1st Cir.2002) (concluding that Puerto Rico case law recognizes an inverse condemnation remedy by which property owners can seek just compensation). Because the Developers have not sought just compensation through those state law procedures, their complaint does not state a valid federal takings claim. See id. at 149 (“A plaintiffs failure to exhaust the inverse condemnation remedy renders premature a section 1983 damages action predicated upon an alleged takings violation.”). B. Procedural Due Process Claim To establish a procedural due process claim under § 1983, a plaintiff “must allege first that it has a property interest as defined by state law and, second, that the defendants, acting under col- or of state law, deprived it of that property interest without constitutionally adequate process.” PFZ Prop., 928 F.2d at 30. Here, the Developers assert that the Planning Board violated their procedural due process rights when it determined that the land use permit had expired and revoked it" }, { "docid": "5812728", "title": "", "text": "used these procedures and been denied just compensation. Id., 473 U.S. at 195, 105 S.Ct. at 3121; see also Yee v. City of Escondido, Cal., 503 U.S. 519, 533-34, 112 S.Ct. 1522, 1531-32, 118 L.Ed.2d 153 (1992) (claim that municipal ordinance as applied effected regulatory taking would be unripe if claimant had not sought state redress, citing Williamson County, 473 U.S. at 186-97, 105 S.Ct. at 3116-22). This court has applied this ripeness doctrine. DeHart v. Town of Austin, 39 F.3d 718, 724 (7th Cir.1994) (premature to decide whether ordinance prohibiting possession of wild animals deprived wild animal business owner of alleged constitutionally protected property interests without due process; suit for excessive regulation is for inverse condemnation, which belongs first in state court, citing inter alia Williamson County, 473 U.S. at 195-96, 105 S.Ct. at 3121-22); River Park, Inc. v. City of Highland Park, 23 F.3d 164, 167 (7th Cir.1994) (properly owner’s Illinois common law rights in zoning classification dispute meant that suit for inverse condemnation belonged in state court, citing Williamson County, 473 U.S. at 195-96, 105 S.Ct. at 3121-22); Estate of Himelstein v. City of Fort Wayne, Ind., 898 F.2d 573, 575-578 (7th Cir.1990) (property owner’s takings claim for city council’s failure to issue building permit after property had allegedly been rezoned not ripe for review where owner had not brought inverse condemnation action in state court and not shown state inverse condemnation procedure was unavailable or inadequate). “[A] landowner cannot complain that his constitutional right [to just compensation for a taking] has been denied until he exhausts his remedies for obtaining a compensation award or equivalent relief from the state.” Gamble v. Eau Claire County, 5 F.3d 285, 286 (7th Cir.1993), cert. denied, — U.S.-, 114 S.Ct. 1096, 127 L.Ed.2d 410 (1994). Illinois law provides a judicially-created remedy of inverse condemnation for property owners aggrieved by municipal legislation. Plaintiffs admit this. This admission acknowledges that federal court is not the proper venue for plaintiffs’ takings claims. Only upon completion of existing state procedures and denial of just compensation may plaintiffs properly claim a taking without just compensation" }, { "docid": "16381501", "title": "", "text": "the parameters of the May 10, 2000, order, but only to analyze what compensation, if any, the standing order triggers for the Plaintiffs under the Constitution. Because neither party briefs how the Rooker/Feldman doctrine applies in the specific context of Takings Clause challenge, we decline to decide the jurisdictional question based on that doctrine and, instead, turn to an analysis of the federal takings claim’s ripeness. Just as there is a federal mechanism by which property owners can challenge regulatory takings effectuated without compensation, so too, is there a homologue in the Puerto Rico system. The Puerto Rico Supreme Court made its first mention of “inverse condemnation” actions in Heftler Int’l, Inc. v. Junta de Planificación, 99 D.P.R. 467, 473 (1970), saying that property owners could use such an action to “force the State to comply with the constitutional provisions guaranteeing that no person shall be deprived of his property without due process of law and without having received compensation.” See also E.L.A. v. Northwestern Const., Inc., 103 D.P.R. 377 at *4, 1975 WL 38849 (1975) (explaining that “inverse” condemnation actions are so-named because they are initiated by the property owner, not by the government) (translation ours). Inverse condemnation actions in Puerto Rico are governed by the same norms and principles as condemnation actions brought directly by the Puerto Rico government. Olivero v. Autoridad de Carreteras, 1978 WL 48858 at *4 (P.R.1978). Given that Puerto Rico has adequate procedure in place through which the Plaintiffs can seek just compensation, it is this local process that should have been the Plaintiffs’ first resort with respect to their takings challenge. Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (“[I]f a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.”); Garay-Medina v. P.R. Highway and Transp. Auth., 2005 WL 1641257 at *2 (D.P.R. July 8, 2005) (“Before filing a lawsuit alleging an unlawful or uncompensated taking," }, { "docid": "23197558", "title": "", "text": "City of Coalinga, 190 Cal.App.3d at 1635-36, 236 Cal.Rptr. at 128-29 (dispute over existence of emergency warranting destruction of private property and over grant of consent by owners to that act required dismissal of summary judgment); Leppo v. City of Petaluma, 20 Cal.App.3d 711, 719, 97 Cal.Rptr. 840, 844 (1971) (damages appropriate where city failed to establish evidence of emergency justifying destruction of building). Plaintiffs do not explain why they fear that right will be denied them. We conclude that California provides plaintiffs an adequate procedure for obtaining just compensation. Finally, plaintiffs assert that defendants are barred by laches from raising Williamson County as a defense. Defen dants respond that laches cannot bar their Williamson County defense because the failure to seek compensation in state court renders the taking claim unripe, and lack of ripeness deprives the court of subject matter jurisdiction. See Austin v. City and County of Honolulu, 840 F.2d 678, 682 (9th Cir.1988). We agree with defendants that ripeness is a jurisdictional requirement and lack of subject matter jurisdiction may not be waived. II The due process clause protects individuals against governmental deprivations of property without due process of law. U.S. Const, amend. XIV, § 1. Plaintiffs contend that the DSOD’s actions in breaching the dam and destroying the lake without providing plaintiffs adequate notice or a hearing amounted to a violation of due process. A. As a threshold matter, we reject defendants’ contention that the second prong of Williamson County requires exhaustion of available state compensation remedies before plaintiffs may pursue their due process claim in federal court. This requirement, derived from “the special nature of the Just Compensation Clause,” 473 U.S. at 196 n. 14, 105 S.Ct. at 3121,. states only that the just compensation clause cannot be violated until the state has subsequently declined to pay for the taking; it has no application to other types of constitutional claims, even where those claims arise out of facts that also give rise to a taking claim. Thus, the rationale for requiring exhaustion of state compensation remedies in taking cases does not extend to a claim" }, { "docid": "5281541", "title": "", "text": "condemnation claim (counterclaims eighteen and nineteen). The To-loczkos allege here that the Town stripped their property of all viable economic use by declaring their cottage a nuisance and forbidding the issuance of any permits to repair the structure. The Fifth Amendment forbids the taking of private property “for public use, without just compensation.” U.S. Const, amend. V. The Takings Clause applies to the states, see Chicago, B & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897), and to takings in the form of government regulations that effectively deprive a property of all economic value, see Henry v. Jefferson Cnty. Comm’n, 637 F.3d 269, 276 (4th Cir.2011). “It is also clear that temporary, but total, regulatory takings are compensable.” Front Royal, 135 F.3d at 285. However, where “a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). The district court dismissed the regulatory takings claim as unripe under this state-litigation requirement, as the Toloczkos failed to obtain an inverse condemnation adjudication — the relevant state law remedy — in state court before removal,to federal court. The Williamson County ripeness doctrine “does not preclude state courts from hearing simultaneously a plaintiffs request for compensation under state law and a claim that, in the alternative, the denial of compensation would violate the Fifth Amendment of the Federal Constitution.” San Remo Hotel, L.P. v. City & Cnty. of S.F., Cal, 545 U.S. 323, 346, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005). But to satisfy Williamson County, plaintiffs must not only file a state law inverse condemnation claim — they must also be “denied just compensation” through a final adjudication in state court. 473 U.S. at 195, 105 S.Ct. 3108. In this case, the Toloczkos removed their regulatory takings claim to federal court before a North Carolina court could grant or deny a correlative" }, { "docid": "5958161", "title": "", "text": "84, 86 (1st Cir.2002); Ayala v. Union de Tronquistas de P.R., Local 901, 74 F.3d 344, 345 (1st Cir.1996); In re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st Cir.1993). The case at hand falls squarely within this taxonomy. Accordingly, we affirm the judgment below for substantially the reasons limned in the district court’s opinion. We add only four comments. First The plaintiff argues that his takings claim is in fact ripe because the DEM reached a final decision as to the issuance of the wetlands permit. This argument rests on a misunderstanding of the ripeness requirements for a takings claim. In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Court held that given the unique qualities of a federal regulatory takings claim, a plaintiff must satisfy two distinct ripeness requirements before a federal court may exercise jurisdiction over such a claim. Id. at 186, 194, 105 S.Ct. 3108. This binary test comports with the text of the Takings Clause, which comes into play when private property is “taken” and when the sovereign has effected the taking without granting “just compensation.” U.S. Const, amend. V. For a takings claim to be ripe, prior state administrative and/or judicial processes not only must have wrought a taking of particular property but also must have established the sovereign’s refusal to provide just compensation for the property taken. See Williamson Cnty., 473 U.S. at 186, 194, 105 S.Ct. 3108; Downing/Salt Pond Partners v. Rhode Island, 643 F.3d 16, 20 (1st Cir.2011). In a regulatory takings case, satisfying the first of these requirements entails the existence of a final decision as to “the application of the regulations to the property.” Williamson Cnty., 473 U.S. at 186, 105 S.Ct. 3108. The plaintiffs complaint shows that he has fulfilled this requirement. The second ripeness requirement, however, has a different dimension. Satisfying it entails a showing that the plaintiff has run the gamut of state-court litigation in search of just compensation (provided, however, that the state makes available adequate procedures" } ]

[ { "docid": "9631493", "title": "", "text": "advised by the trial judge of his right to trial by jury and would be consistent with the approach taken in accepting guilty pleas, under Rule 11, Fed.R.Crim.P. Adoption of such a procedure would provide an additional safeguard against a defendant’s involuntary waiver of his right. It would minimize the uncertainty resulting from a reliance on defense counsel to explain the nature of the right and the consequences of its waiver. We also find support for this procedure in decisions of other circuits which have noted it with approval, but which have not held it to be a necessary element of the waiver procedure. See United States v. Straite, 138 U.S.App. D.C. 163, 425 F.2d 594 (1970); Hatcher v. United States, 122 U.S.App.D.C. 148, 352 F.2d 364 (1965), cert. denied, 382 U.S. 1030, 86 S.Ct. 654, 15 L.Ed.2d 542 (1966); United States v. Hunt, 413 F. 2d 983 (4th Cir. 1969). The District of Columbia Court of Appeals has gone farther, in Jackson v. United States, D. C.App., 262 A.2d 106, 109 (1970), holding that “henceforth, in trials commenced after the issuance of this opinion, there should be in the record a statement in open court by the defendant himself in order to provide a basis for subsequently determining, if necessary, that he knowingly and voluntarily waived his constitutional right to trial by jury.” The Court noted that the Government, in its brief, had suggested the merits of direct communication between the judge and the defendant in addition to a written waiver. Furthermore, decisions in other circuits regarding the voluntariness of a jury waiver mention that the defendant was personally interrogated by the trial judge prior to the acceptance of the waiver. See Roseman v. United States, 364 F.2d 18, 27 (9th Cir. 1966), cert. denied, 386 U.S. 918, 87 S.Ct. 879, 17 L.Ed.2d 789 (1967); McCranie v. United States, 333 F.2d 307 (5th Cir. 1964). See also Dranow v. United States, 325 F.2d 481, 485 (8th Cir. 1963), cert. denied, 376 U.S. 912, 84 S.Ct. 669, 11 L.Ed.2d 610 (1964) (interrogation by Government counsel in open court). Although we" } ]

[ { "docid": "12108017", "title": "", "text": "trial, the notion that the trial counsel was improperly referring to near relatives of the voting members of the court-martial strikes us as tenuous at best. . Improper argument by trial counsel during the presentencing portion of a court-martial does not necessarily require corrective action by an appellate court. United States v. Gerlach, 37 C.M.R. 3, 5 (C.M.A.1966); United States v. Carpenter, 29 C.M.R. 234, 236 (C.M.A.1960); see also United States v. Neal, 31 C.M.R. 309, 311 (C.M.A.1962) (even if presentencing remarks of trial counsel exceeded fair comment, they did not influence the court-martial to accused’s prejudice). . The R.C.M. 1001(g) waiver provision was first promulgated by the President in the Manual for Courts-Martial of 1984. In adopting this rule, the President was clearly on notice of existing military judicial precedent, as reflected in opinions such as United States v. Wood, 40 C.M.R. 3 (C.M.A.1969) and United States v. Shamberger, 1 M.J. 377 (C.M.A.1976). See generally Manual for Courts-Martial, United States, 1984, Analysis of R.C.M. 919(c) and 1001(g), App. 21, A21-59 and A21-62. . In United States v. Goode, 1 M.J. 3 (C.M.A. 1975), the Court of Military Appeals formalized a procedure whereby the trial defense counsel would be afforded an opportunity to correct or challenge matters contained in the post-trial review of the staff judge advocate which were deemed erroneous, inadequate or misleading, or on which he otherwise wished to comment. Since the promulgation of the 1984 Manual for Courts-Martial, R.C.M. 1105 (which is captioned “matters submitted by the accused\") has served a corresponding, albeit slightly broader, function. . The majority in Darden v. Wainwright agreed with the District Court below that \"Darden’s trial was not perfect — few are — but neither was it fundamentally unfair.” 106 S.Ct. at 2473 (citation omitted). . Official military records on file in the office of the clerk of this court indicate that a co-accused, who was separately tried and convicted by general court-martial of charges virtually identical to those upon which this appellant was arraigned, was sentenced to a dishonorable discharge, confinement for thirty years, forfeiture of all pay and allowances," }, { "docid": "1413817", "title": "", "text": "particular, R.C.M. 910(c) reads, “Before accepting a plea of guilty, the military judge shall address the accused personally and inform the accused of, and determine that the accused understands, the following ...” The rule goes on to list things that must be reflected on the record, including the nature of the offense, the maximum and minimum penalties, the associated waiver of rights, and the offense itself. Id. There is little doubt that the drafters of the R.C.M. intended the Care requirements to be incorporated into the rules. Care is cited extensively in the analysis of R.C.M. 910(c) and R.C.M. 910(e). Manual for Courts-Martial, United States, Analysis of Rules for Courts-Martial app. 21 at A21-59 to A21-60 (2005 ed.). There is ample support for the proposition that once a rule of ease law is adopted by Congress or is promulgated by the President, it is “codified” and that the codified iteration of the rule supplants the original case law. United States v. Lopez, 35 M.J. 35 (C.M.A.1992). Once the President creates a rule, unless it is unconstitutional, this Court is bound to follow it. United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). In United States v. Kossman, 38 M.J. 258 (C.M.A.1993), this Court ruled on the fate of United States v. Burton, 21 C.M.A. 112, 44 C.M.R. 166 (1971), a speedy trial decision that created a procedural rule where none had existed. In Kossman, this Court decided that in the wake of the adoption of R.C.M. 707, “we reiterate that the Burton presumption was court-made and declared in a procedural vacuum, without the benefit of presidential input. Just as we created it, we now reconsider it. Burton and Driver are hereby overruled.” 38 M.J. 258, 261 (C.M.A.1993). Likewise, because R.C.M. 910 is the codification of Care, it supersedes Care and is the primary authority for examining guilty pleas. Subsequent ease law should be used to interpret R.C.M. 910. The latest decision that has had an impact on guilty plea jurisprudence is the aforementioned Bradshaw v. Stumpf. In Bradshaw, the Supreme Court ruled, “[T]he constitutional prerequisites" }, { "docid": "12048977", "title": "", "text": "the record when — and certainly Captain Agar [military defense counsel] knows what the Rules of Court are. I think the Manual’s pretty clear the military judge can set a date by which the accused must request enlisted members or waive that request. I’ve done that in my Rules of Court for all cases. My Rules of Court also state that, if there’s any problem with any of the deadlines set in there, they should be brought to my attention; and, I’m perfectly willing to modify those deadlines, but that was not done in this case. So, based on my authority under the Manual for Courts-Martial and the Rules of Court I’ve stated, I think the accused waived his right to enlisted members____ In this case, both the trial counsel and the military judge suggest that the reason for the denial and waiver was based upon the untimely nature of the request. The appellant argues that any request for enlisted members submitted before the court is assembled is indeed timely, barring some unusual circumstances not present in this case. Furthermore, Court-Martial Convening Order Number 3, dated 3 January 1992, which appointed the court-martial panel that tried this case, contains a pre-selected court-martial panel with enlisted members to be used in the event an accused requested enlisted members. II Article 25(c)(1), UCMJ, provides that, after an accused has personally requested orally on the record or in writing that enlisted members serve on his court-martial, the accused may not be tried by court-martial the membership of which does not include at least one-third enlisted members. Rule for Courts-Martial 903 [hereinafter R.C.M.] governs the accused’s elections for the composition of his court-martial and provides in pertinent part: (a) Time of elections. (1) Requests for enlisted members. Before the end of the initial Article 39(a) session or, in the absence of such a session, before assembly, the military judge shall ascertain, as applicable, whether an enlisted accused elects to be tried by a court-martial including enlisted members. The military judge may, as a matter of discretion, permit the accused to defer requesting enlisted members" }, { "docid": "8450498", "title": "", "text": "1037 (9th Cir.1989); United States v. Libby, 429 F.Supp.2d 1, 7 n. 11 (D.D.C.2006). . United States v. Stein, 488 F.Supp.2d 350, 363 (S.D.N.Y.2007). . See, e.g., Bryan, 868 F.2d at 1036. . See Poulin, 592 F.Supp.2d at 143. . We also note that the Government failed to produce the banana, despite the accused’s specific request for it, until ordered to do so by the military judge. Although the banana was held by the Sheriff's Department, the military judge found that the Government exercised control over the banana. As a result, this failure to produce evidence that tended to be exculpatory violated R.C.M. 701(a)(6). Cf. Kyles v. Whitley, 514 U.S. 419, 433-34, 437-40, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (noting that prosecution must disclose evidence requested by a defendant even if it is held by police investigators). . The question of whether the contents of the box of evidence reasonably tended to be exculpatory is clear-cut. The box included such items as e-mails between the accused and Mrs. MS about the sexual abuse allegations, notes by Mrs. MS about what Miss MS had said about the alleged sexual abuse incidents, and a note memorializing a recantation by Miss MS. . We further note that if trial counsel had simply engaged in reasonable diligence in preparing the Government's case, he would have examined the contents of this box that consisted of a compendium of information relevant to the charges, and upon doing so he would have incurred the responsibility to turn over to the defense responsive material and exculpatory information. . The R.C.M. 701(g)(3) sanctions provision is based on Fed.R.Crim.P. 16(d)(2). See Manual for Courts-Martial, United States, Analysis of the Rules for Courts-Martial, app. 21 at A21-35 (2012 ed.). . Although the military judge made no finding that trial counsel engaged in willful misconduct, our review of the record causes us to have grave concerns about the conduct of CPT Jones. At a minimum it appears that his handling of his discovery obligations in this case was grossly negligent. . The military judge determined that the three trial continuances, including" }, { "docid": "12048986", "title": "", "text": "be the appellant’s personal request for enlisted members on his court-martial. The military judge denied the request, however, reasoning that it was untimely according to local court rules. In my opinion, the denial was plain error affecting a substantial right of the appellant. Article 25(c)(1) provides in pertinent part that “[ajfter such a request [i.e., a request for enlisted members made prior to assembly], the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court____” As the Court of Military Appeals noted in United States v. Stipe, 23 U.S.C.M.A. 11, 48 C.M.R. 267 (1974) the military judge has no discretion where such a request is concerned. . The military judge should have directed his question directly to the accused rather than to counsel. See United States v. Brookins, 33 M.J. 793, 795 (A.C.M.R.1991). . The abuse of discretion standard of review applies when the question is withdrawal of a request for military judge alone after the court is assembled. See United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A. 1978); United States v. Wright, 5 M.J. 106 (C.M.A.1978); United States v. Bryant, 23 U.S.C.M.A. 326, 49 C.M.R. 660 (1975). It should be noted that, when the accused has made a request for enlisted members before assembly of the court, the provisions of R.C.M. 903(e) that purport to introduce the concepts of waiver and judicial discretion are contrary to the plain language of Article 25(c)(1). It cannot be debated that the President lacks the authority under Article 36(a) to prescribe rules for courts-martial that are contrary to the Uniform Code of Military Justice. Thus, those portions of R.C.M. 903(e) are void that abridge the rights of a military accused under Article 25(c)(1)." }, { "docid": "23381202", "title": "", "text": "40 CMR 148 (1969). The only question remaining is whether the error was prejudicial. I believe that it was. United States v Johnson, supra. Cf. United States v Bruns, 19 USCMA 501, 42 CMR 103 (1970). Trial by military judge alone is, in reality, a waiver of the military counterpart, secured by statute (Article 16, Code, supra) of the constitutional right to trial by a jury of one’s peers. The question before us is, then, in my opinion, of constitutional proportions. Because of the substantial nature of this right, the President, pursuant to the authority granted him by Congress (Article 36, Code, supra, 10 USC § 836), has placed upon the military judge alone the responsibility for personally determining that the waiver was “understandingly” made. This determination must be made and reflected in the record of trial. Where, as here, the record is silent, appellate authorities are precluded from discharging their proper functions of review. The Government contends that the presence in this record of the signed, written request for trial before military judge alone is sufficient to constitute a waiver of the right to trial by court members and cites Federal cases, interpreting Federal Rule 23(a), which have so held. The short answer to that contention is that the Federal Rules do not contain a requirement that the Federal judge determine the request was understandingly made. As the court stated in United States v Hunt, 413 F2d 983, 984 (CA 4th Cir) (1969): “Neither Rule 23(a) nor any decision to which we have been referred required the omitted interrogation.” The importance of the accused’s understanding of his right to a jury trial and his free and voluntary relinquishment of that right was acknowledged in Hunt when the court said that the better practice would be for the district judge to personally interrogate the defendants on the matter. The substantial nature thereof was established when the court declared, at page 984: “. . . if defendants, or either of them, were not aware of their rights or, knowing them, did not freely and voluntarily relinquish them, the matter may be" }, { "docid": "12048978", "title": "", "text": "present in this case. Furthermore, Court-Martial Convening Order Number 3, dated 3 January 1992, which appointed the court-martial panel that tried this case, contains a pre-selected court-martial panel with enlisted members to be used in the event an accused requested enlisted members. II Article 25(c)(1), UCMJ, provides that, after an accused has personally requested orally on the record or in writing that enlisted members serve on his court-martial, the accused may not be tried by court-martial the membership of which does not include at least one-third enlisted members. Rule for Courts-Martial 903 [hereinafter R.C.M.] governs the accused’s elections for the composition of his court-martial and provides in pertinent part: (a) Time of elections. (1) Requests for enlisted members. Before the end of the initial Article 39(a) session or, in the absence of such a session, before assembly, the military judge shall ascertain, as applicable, whether an enlisted accused elects to be tried by a court-martial including enlisted members. The military judge may, as a matter of discretion, permit the accused to defer requesting enlisted members until any time before assembly, which time may be determined by the military judge. (e) Untimely requests. Failure to request, or failure to withdraw a request for enlisted members or trial by military judge alone in a timely manner shall waive the right to submit or to withdraw such a request. However, the military judge may until the beginning of the introduction of evidence on the merits, as a matter of discretion, approve an untimely request or withdrawal of a request. R.C.M. 903(a)(1) and (e). The discussion to R.C.M. 903(e) states: In exercising discretion whether to approve an untimely request or withdrawal of a request, the military judge should balance the reason for the request (for example, whether it is a mere change of tactics or results from a substantial change of circumstances) against any expense, delay, or inconvenience which would result from granting the request. In this case, the characterization of the request for enlisted members as “untimely” is apparently based solely upon the fact it was submitted four duty days before trial rather" }, { "docid": "1094352", "title": "", "text": "defense counsel: MJ: Has the accused been advised of his right to request trial before me as military judge alone? DC: Yes, Your Honor, he has been so advised. * * * * * * MJ: Does the accused desire to submit a request for trial before me as military judge alone? DC: No, Your Honor, he does not. MJ: Have you advised the accused of his right to request that the member ship of the court include enlisted persons? DC: Yes, Your Honor, he has been so advised. MJ: Has he made such a request? DC: No, Your Honor, he has not. M J: Does he desire to do so at this time? DC: He does not, Your Honor. Citing United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969) and United States v. Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969), appellant contends the military judge failed to personally address him and assure himself that appellant voluntarily and knowingly exercised the available options. We do not agree. In United States v. Jenkins, 20 U.S.C.M.A. 112, 42 C.M.R. 304 (1970) the Court made it clear that insofar as trial by military judge alone is concerned, no fundamental constitutional rights are involved. The same would also be true regarding the composition of the members. Therefore, appellant’s analogy is imperfect. Paragraph 61g, Manual for Courts-Martial, United States, 1969 (Revised edition) only requires the military judge to ascertain whether the accused has been advised of his right to request trial by military judge alone. Paragraph 61h of the Manual provides that trial counsel will announce whether the accused has made a request in writing for enlisted members. The procedure to be followed by the military judge in ascertaining whether the accused desires to be tried by military judge alone and whether he wishes enlisted members is set forth in Appendix 8b (page A8-10) of the Manual. The military judge followed this procedure. Defense counsel stated that appellant had been advised of his rights. In the absence of evidence to the contrary, trial defense counsel is presumed to have discharged adequately his" }, { "docid": "23381203", "title": "", "text": "is sufficient to constitute a waiver of the right to trial by court members and cites Federal cases, interpreting Federal Rule 23(a), which have so held. The short answer to that contention is that the Federal Rules do not contain a requirement that the Federal judge determine the request was understandingly made. As the court stated in United States v Hunt, 413 F2d 983, 984 (CA 4th Cir) (1969): “Neither Rule 23(a) nor any decision to which we have been referred required the omitted interrogation.” The importance of the accused’s understanding of his right to a jury trial and his free and voluntary relinquishment of that right was acknowledged in Hunt when the court said that the better practice would be for the district judge to personally interrogate the defendants on the matter. The substantial nature thereof was established when the court declared, at page 984: “. . . if defendants, or either of them, were not aware of their rights or, knowing them, did not freely and voluntarily relinquish them, the matter may be subsequently raised by motion under 28 U'SCA, § 2255 [Habeas Corpus — Federal custody].” See also United States v Straite, 425 F2d 594, 595, 596 (CA DC Cir) (1970), where the court, in making a similar finding, referred the attention of the district court to “the recommendation by the American Bar Association Project on Minimum Standards for Criminal Justice (Trial by Jury, Part I, Section 1.2(b)) that the defendant shall be ‘advised by the court of his right to trial by jury’ as an essential element of the waiver procedure.” Like the Government, my brothers hold that the accused in this case waived the error. Unlike the Government, however, they do not base their holding on Federal cases but on the decision by this Court in United States v Donohew, 18 USCMA 149, 39 CMR 149 (1969). In Donohew, we did indeed hold that, absent any subsequent complaint by the accused and by his silence at trial, when the appointed defense counsel stated that he alone would con duct the defense, the accused waived his" }, { "docid": "13312526", "title": "", "text": "Collateral proceedings, obviously, are not the preferred procedure for determining the competency of a defendant to execute a jury trial waiver. This determination is most appropriately made on the record before the waiver is executed. A contemporaneous colloquy with the defendant before the jury trial waiver is executed could create a record capable of withstanding subsequent challenges, satisfy the court’s responsibility, facilitate intelligent appellate review, conserve scarce judicial resources, and enhance the finality of criminal convictions. See DeRobertis, 538 F.Supp. at 905. There is no constitutional requirement that a court conduct an on the record colloquy with the defendant prior to the jury trial waiver. See Scott, 583 F.2d 362. However, the manifest importance of the jury trial right and the unsatisfactory nature of collateral proceedings compels this Court to make the following suggestion. We implore the district courts to personally inform each defendant of the benefits and burdens of jury trials on the record prior to accepting a proffered waiver. See, e.g., Witherspoon v. United States, 633 F.2d 1242, 1247 (6th Cir.1980); Estrada v. United States, 457 F.2d 255, 257 (7th Cir.1972); United States v. David, 511 F.2d 355, 361 (D.C.Cir.1975); United States v. Mitchell, 427 F.2d 1280, 1282 (3rd Cir.1970); United States v. Hunt, 413 F.2d 983, 984 (4th Cir.1969). At a minimum, a defendant should be informed that a jury is composed of 12 members of the community, he may participate in the selection of jurors, the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocence should he waive his jury trial right. See United States v. Delgado, 685 F.2d 889, 890 (7th Cir.1981). Today, we decline to join several courts which have adopted mandatory supervisory rules requiring trial courts to personally interrogate defendants prior to accepting a jury trial waiver. See United States v. Scott, 583 F.2d 362, 364 (7th Cir.1978); Hawkins v. United States, 385 A.2d 744, 747 (D.C.App.Ct.1978); Biddle v. State of Maryland, 40 Md.App. 399, 400-403, 392 A.2d 100, 101-103 (1978); Ciummei v. Commonwealth, 378 Mass. 504, 392 N.E.2d 1186, 1189 (1979). We are confident" }, { "docid": "1865779", "title": "", "text": "McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Supreme Court stated: By personally interrogating the defendant, not only would the judge be better able to ascertain the plea’s voluntariness, but he also will develop a more complete record to support his determination in a subsequent post-conviction attack____ Both of these goals are undermined in proportion to the degree the ... judge resorts to “assumptions” not based upon record responses to his inquiries. In United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969), the Court applied McCarthy to the military, establishing a much more detailed plea inquiry than had previously been required. In 1984, R.C.M. 910(c)(l)-(5) codified the elements of a Care inquiry, requiring that the accused understand (1) the nature of the charges to which the plea is offered; (2) the possible sentence for each offense to which the plea is offered; (3) the consequences of the plea; (4) right to counsel; and (5) what rights will be waived as a result of the plea. Rule for Courts-Martial 910 does not violate either the Constitution or the UCMJ, and therefore is binding upon us. See, e.g., United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998); United States v. Kossman, 38 M.J. 258 (C.M.A.1993). The analysis to R.C.M. 910(c) indicates that “this subsection is taken from [Federal Rule] 11(c) and is consistent” with the Supreme Court cases of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and McCarthy. Rule for Courts-Martial 910(d), like Federal Rule 11(d), also requires a factual basis for the plea. Most significantly, the language of R.C.M. 910(c) tracks verbatim the language of Federal Rule 11(c). Given the link between Federal Rule 11(c) and R.C.M. 910(c), Supreme Court precedent is applicable in our interpretation of R.C.M. 910. In Morgan, the Supreme Court addressed how a trial court may determine that the defendant understands the nature of a charge. The defendant, who had a functioning intelligence quotient ranging between 68 and 72, was indicted for first degree murder, but" }, { "docid": "12048984", "title": "", "text": "judge’s subsequent denial of the \"request for enlisted members\" made by the civilian defense counsel, there was never an . opportunity for the appellant to be queried “on the record” of his personal desires as to forum. . There is no requirement that a balancing test be performed on the record under the circumstances of this case. But see United States v. Webster, 24 M.J. 96 (C.M.A.1987), where the Court of Military Appeals stated: [A] military judge who denies a request for trial by military judge alone must state his reasons on the record. Likewise, the discussion of R.C.M. 903(c)(2)(B), Manual for Courts-Martial, United States, 1984, states that \"[t]he basis for the denial of a request must be made a matter of record.\" Only through a statement of reasons can the exercise of the judge’s discretion in denying the request be reviewed by appellate courts. (Citations omitted). . Our disposition of this case on the denial of the appellant’s right to trial by a court-martial panel composed of at least one-third enlisted members makes it unnecessary to consider the other assigned error. JOHNSTON, Judge, concurring in the result: The majority opinion erroneously reviews this case utilizing an abuse of discretion standard. On the facts of this case, the military judge did not have the discretion to deny the request. At the initial Article 39(a) session in this case, the appellant was represented by an associate of the civilian counsel who would be defending him. At that session the military judge merely advised the appellant of his forum options without requesting a forum choice. The court then recessed on 3 March 1992 and reconvened on 20 April 1992 because lead civilian counsel was unavailable until that date. When the court reconvened, the military judge asked the appellant’s defense counsel, in pertinent part, “has the accused elected to be tried by a judge alone or made some other decision?” The defense counsel responded that the appellant had decided to be tried by “a court composed of one-third enlisted.” I agree with my brothers that this statement on the record was sufficient to" }, { "docid": "19177416", "title": "", "text": "R.C.M. 705(c)(2)(D) could have been drafted more precisely, the plain import of its reference to R.C.M. 1109 is to require a convening authority to comply with the R.C.M. 1109 procedural protections before the benefit of a PTA can be withdrawn. And while this Court has not expressly addressed this issue before, this has been, in fact, how the provisions have been interpreted together for some time. United States v. Smith, 46 M.J. 263, 265 (C.A.A.F.1997); United States v. Tester, 59 M.J. 644, 646 (A.Ct.Crim.App.2003); United States v. Bulla, 58 M.J. 715, 721 (C.G.Ct.Crim.App.2003); United States v. Perlman, 44 M.J. 615, 616 (N.M.Ct.Crim.App.1996); United States v. Kendra, 31 M.J. 846, 848 (N.M.C.M.R.1990); see also Manual for Courts-Martial, United States, Analysis of the Rules for Courts-Martial app. 21 at A2140 (2005 ed.). Moreover, this is precisely what Appellant’s PTA provided for in this case. The misconduct provision of Appellant’s PTA complied with R.C.M. 705, and the convening authority did not violate the PTA by withdrawing from a portion of the sentencing limitation in light of Appellant’s post-trial misconduct where Appellant waived the procedural protections to which he was otherwise entitled under R.C.M. 1109. B. The Providency of Appellant’s Plea The Court of Criminal Appeals held that the military judge legally erred in failing to explain the pretrial misconduct provision to Appellant prior to accepting his guilty plea, but, despite the error, Appellant was not entitled to relief because he failed to establish the material prejudice to a substantial right required under Article 59(a), UCMJ. Hunter, 64 M.J. at 573-74. We agree. “Military law imposes an independent obligation on the military judge to ensure that the accused understands what he gives up because of his plea and the accused’s consent to do so must be ascertained.” United States v. Resch, 65 M.J. 233, 237 (C.A.A.F.2007). “The accused must know and understand not only the agreement’s impact on the charges and specifications which bear on the plea ... but also other terms of the agreement, including consequences of future misconduct or waiver of various rights.” United States v. Felder, 59 M.J. 444, 445 (C.A.A.F.2004);" }, { "docid": "19089157", "title": "", "text": "fact, and the attachments to the stipulation of fact to determine whether Appellant was guilty of desertion. Before a plea of guilty may be accepted, a trial judge is required to advise the accused that his guilty plea waives his constitutional rights to a jury trial, to confrontation of his accusers, and his privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969). In military practice, Article 45, UCMJ, requires the military judge to address the accused personally and explain the rights he is giving up, and to obtain the accused’s express waiver of these rights. See Care, 18 C.M.A. at 541, 40 C.M.R. at 253. In addition, the military judge is obligated to ensure that an accused understands the provisions of any pretrial agreement, and to ensure that the parties agree to the terms set forth in the agreement. United States v. Bartley, 47 M.J. 182, 186 (C.A.A.F.1997); United States v. Green, 1 M.J. 453, 456 (C.M.A.1976); Rule for Courts-Martial (R.C.M.) 910(f)(4)(A). Moreover, the military judge must ensure that the accused freely consents to enter into any stipulation of fact or stipulation of expected testimony. R.C.M. 811(e). In accordance with these principles, the military judge advised Appellant that his guilty plea waived his right against self-incrimination. He further advised Appellant that “you are giving up these rights as to the offenses you’ve pled guilty to. To that greater offense of desertion, you retain those rights.” When defense counsel asked the military judge to consider Appellant’s providence inquiry statements after the close of the Government’s evidence, the military judge concluded that he could “consider ... everything I have heard up to now” without further questioning or advising Appellant. This, of course, was error since it was inconsistent with the advice the military judge gave Appellant on the greater offense of desertion and therefore, beyond Appellant’s express waiver of his privilege against self-incrimination. See United States v. Grijalva, 55 M.J. 223, 227-28 (C.A.A.F.2001). Military law imposes an independent obligation on the" }, { "docid": "7339219", "title": "", "text": "Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Our review of discovery/disclosure issues utilizes a two-step analysis: first, we determine whether the information or evidence at issue was subject to disclosure or discoveiy; second, if there was nondisclosure of such information, we test the effect of that nondisclosure on the appellant’s trial. Nondisclosure of information pertaining to disciplinary action against SA M. The right of an accused to obtain favorable evidence is established in Article 46, UCMJ, 10 U.S.C. § 846 (2000). This statute is implemented in R.C.M. 701 which details the liberal discoveiy practice in courts-martial. Rule for Courts-Martial 701 sets forth the rights and corresponding obligations of the parties to a court-martial. Of particular importance in this case are the Government’s duties concerning disclosure of information requested by the defense which is “material to the preparation of the defense....” R.C.M. 701(a)(2)(A). Discovery practice under Article 46 and R.C.M. 701 “promote[s] full discoveiy ... eliminates ‘gamesmanship’ from the discovery process” and is “quite liberal____ Providing broad discovery at an early stage reduces pretrial motions practice and surprise and delay at trial.” Manual for Courts-Martial, United States (2002 ed.), Analysis of Rules for Courts-Martial A21-32. The military rules pertaining to discovery focus on equal access to evidence to aid the preparation of the defense and enhance the orderly administration of military justice. To this end, the discovery practice is not focused solely upon evidence known to be admissible at trial. See United States v. Stone, 40 M.J. 420, 422 (C.M.A.1994)(citing United States v. Lloyd, 992 F.2d 348, 351 (D.C.Cir.1993)). The parties to a court-martial should evaluate pretrial discovery and disclosure issues in light of this liberal mandate. Roberts made a proper request to compel discovery of information and the Government declined disclosure. Thereafter, at Roberts’ request, the matter was submitted to the military judge to review in camera, pursuant to R.C.M. 701. Under such circumstances, the military judge may review the informa tion ex parte, in camera, and may order “that the discovery or inspection be denied, restricted, or deferred, or make such other order as is" }, { "docid": "1865778", "title": "", "text": "trial is returned to the General Counsel of the Department of Transportation for remand to the Court of Criminal Appeals. That court may either dismiss Specification 2 of the Charge and reassess the sentence, or it may order a rehearing. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2002), will apply. CRAWFORD, Chief Judge (dissenting): Rule for Courts-Martial 910(c) [hereinafter R.C.M.], like Federal Rule of Criminal Procedure 11(c) [hereinafter Federal Rule], requires that Appellant understand the nature of the offense to which a guilty plea is offered. As the Supreme Court has indicated, this may be satisfied by the “factual statement,” the “stipulation,” or “representation” by counsel that the offense was committed. Henderson v. Morgan, 426 U.S. 637, 646, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). Because R.C.M. 910(c) is similarly satisfied here, I respectfully dissent. When an accused enters a guilty plea, the military judge must ensure that the plea meets the requirements of the Constitution, Uniform Code of Military Justice [hereinafter UCMJ], and Manual for Courts-Martial, United States (2002 ed.) [hereinafter MCM]. In McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Supreme Court stated: By personally interrogating the defendant, not only would the judge be better able to ascertain the plea’s voluntariness, but he also will develop a more complete record to support his determination in a subsequent post-conviction attack____ Both of these goals are undermined in proportion to the degree the ... judge resorts to “assumptions” not based upon record responses to his inquiries. In United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969), the Court applied McCarthy to the military, establishing a much more detailed plea inquiry than had previously been required. In 1984, R.C.M. 910(c)(l)-(5) codified the elements of a Care inquiry, requiring that the accused understand (1) the nature of the charges to which the plea is offered; (2) the possible sentence for each offense to which the plea is offered; (3) the consequences of the plea; (4) right to counsel; and (5) what rights will be waived as a result of the plea." }, { "docid": "1413816", "title": "", "text": "reflect not only that the elements of each offense charged have been explained to the accused but also that the military trial judge or the president has questioned the accused about what he did or did not do, and what he intended (where this is pertinent), to make the basis for a determination by the military trial judge or president whether the acts or omissions of the accused constitute the offense or offense to which he is pleading guilty____ Further, the record must also demonstrate the military trial judge or president personally addressed the accused, advised him that his plea waives his right against self-incrimination, his right to trial of the facts by court-martial, and his right to be confronted by the witnesses against him; and that he waives such rights by his plea. 18 C.M.A. at 541, 40 C.M.R. at 253 (citations omitted). Care expands upon the federal standard by requiring military judges to explain more than fifteen items to the accused. The Care decision was codified in Rule for Courts-Martial (R.C.M.) 910. In particular, R.C.M. 910(c) reads, “Before accepting a plea of guilty, the military judge shall address the accused personally and inform the accused of, and determine that the accused understands, the following ...” The rule goes on to list things that must be reflected on the record, including the nature of the offense, the maximum and minimum penalties, the associated waiver of rights, and the offense itself. Id. There is little doubt that the drafters of the R.C.M. intended the Care requirements to be incorporated into the rules. Care is cited extensively in the analysis of R.C.M. 910(c) and R.C.M. 910(e). Manual for Courts-Martial, United States, Analysis of Rules for Courts-Martial app. 21 at A21-59 to A21-60 (2005 ed.). There is ample support for the proposition that once a rule of ease law is adopted by Congress or is promulgated by the President, it is “codified” and that the codified iteration of the rule supplants the original case law. United States v. Lopez, 35 M.J. 35 (C.M.A.1992). Once the President creates a rule, unless it is" }, { "docid": "12094778", "title": "", "text": "the judge, it would make no difference whether the judge was required to give advice on this subject or simply volunteered it. Even if considered on its merits, though, the Government’s position is not persuasive. In the first place, Donohew was not expressly and solely grounded on the circumstances to which Judge Barr adverts in Jerasi; and so, the change in those circumstances does not necessitate overruling Donohew. Secondly, we note that express warnings of a right are frequently utilized as a means of assuring that a waiver of those rights is knowing and voluntary. See United States v. Donohew, supra; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Fed.R.Crim.P. 11(c). Indeed, in the Manual for Courts-Martial, United States, 1984, the President requires that the military judge advise an accused of his right to counsel, R.C.M. 901(d)(4) and that, after announcement of sentence but before adjournment, the judge inform an accused of his post-trial and appellate rights. R.C.M. 1010(a). We believe that, because the Donohew warning requirement has not been applied by this Court in an unduly strict and technical manner, cf. United States v. Turner, 20 U.S.C.M.A. 167, 43 C.M.R. 7 (1970), it does not impose an excessive burden on the military judge. Moreover, although in the case at bar, the requirement has indirectly created an appellate issue, we are sure that this cost is outweighed by benefits from the warning in other cases where it has forestalled post-trial claims that, if the accused had known of his right to do so, he would have asked for a different military lawyer or would have employed civilian counsel. B The most significant elements of Article 38 are that it provides an accused with three alternatives: (1) detailed counsel, (2) requested military counsel at government expense, or (3) civilian counsel at the accused’s own expense. United States v. Turner, supra. Even after Article 38 was amended in 1981, it appears that advice calling attention to these three options would satisfy Donohew and that there would be no need to mention excusing detailed counsel unless the accused" }, { "docid": "12048983", "title": "", "text": "over substance. The military judge abused his discretion when he denied the request for enlisted members. The findings of guilty and the sentence are set aside. A rehearing may be ordered by the same or a different convening authority. Judge BAKER concurs. . Our analysis is based on the military judge’s treatment of this issue under the Manual for Courts-Martial, United States, 1984. Because the issue in this case can be resolved, by testing for an abuse of discretion, we chose not to go as far as our brother judge has in finding that Article 25(c)(1), 10 U.S.C. § 825(c)(1) allows the military judge no discretion in denying a request for enlisted members made prior to assembly of the court. . We judicially note that 14 April 1992 was a Tuesday. We also note that \"a request for enlisted members submitted by counsel on behalf of an accused does not satisfy the jurisdictional requirement that the accused ‘personally’ make the request.” United States v. Brookins, 33 M.J. 793, 795 (A.C.M.R.1991). Moreover, because of the military judge’s subsequent denial of the \"request for enlisted members\" made by the civilian defense counsel, there was never an . opportunity for the appellant to be queried “on the record” of his personal desires as to forum. . There is no requirement that a balancing test be performed on the record under the circumstances of this case. But see United States v. Webster, 24 M.J. 96 (C.M.A.1987), where the Court of Military Appeals stated: [A] military judge who denies a request for trial by military judge alone must state his reasons on the record. Likewise, the discussion of R.C.M. 903(c)(2)(B), Manual for Courts-Martial, United States, 1984, states that \"[t]he basis for the denial of a request must be made a matter of record.\" Only through a statement of reasons can the exercise of the judge’s discretion in denying the request be reviewed by appellate courts. (Citations omitted). . Our disposition of this case on the denial of the appellant’s right to trial by a court-martial panel composed of at least one-third enlisted members makes it" }, { "docid": "20001241", "title": "", "text": "right against self-incrimination, his right to a trial of the facts by a court-martial, and his right to be confronted by the witnesses against him.” Care, 40 C.M.R. at 253. The Manual for Courts-Martial, United States, 1969 (Revised edition) was amended to include the requirements of the Care decision by Change 1, dated 27 January 1975. Paragraph 706 (2) of the 1969 Manual provided, at the time of this trial, that the military judge “must also personally advise the accused” as mandated by the Care decision. These requirements thus established for courts-martial are fundamental to assuring an accused’s understanding of his actions, and the failure of a military judge to follow the mandate of Care is prejudicial error, United States v. Washington, 44 C.M.R. 644 (A.C.M.R.1971), as acceptance of a guilty plea by a military judge in the absence of a knowing and intentional waiver of his rights by an accused violates the due process clause of the Constitution. United States v. Castrillon-Moreno, 7 M.J. 414 (C.M.A.1979); see Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); cf. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (interpreting Rule 11, Federal Rules of Criminal Procedure, the Supreme Court required waiver of constitutional rights to be intentional). The Court of Military Appeals has not required any particular manner, words or script to accomplish the advisement of these rights, having held that the substance, not the form, of the information imparted to an accused determines whether he has been properly advised. United States v. Bingham, 43 C.M.R. 361 (C.M.A.1971); cf. United States v. Palos, 42 C.M.R. 296 (C.M.A. 1970) (record demonstrated that trial judge made full explanation to accused of his rights but made no finding of knowing, intelligent and conscious waiver of rights by accused); United States v. Mewborn, 38 C.M.R. 229 (C.M.A.1968). Here, however, the military judge failed totally to advise the appellant either specifically or in substance. There is simply a void in the record; there is nothing the Court can point to and say — this told the appellant" } ]

[ { "docid": "22705484", "title": "", "text": "Justice Marshall delivered the opinion of the Court. This case presents the question whether a trustee in bankruptcy may “avoid” (i. e., recover) from the Internal Revenue Service (IRS) payments of certain withholding and excise taxes that the debtor made before it filed for bankruptcy. We hold that the funds paid here were not the property of the debtor prior to payment; instead, they were held in trust by the debtor for the IRS. We accordingly conclude that the trustee may not recover the funds. I American International Airways, Inc. (AIA), was a commercial airline. As an employer, AIA was required to withhold federal income taxes and to collect Federal Insurance Contributions Act (FICA) taxes from its employees’ wages. 26 U. S. C. § 3402(a) (income taxes); § 3102(a) (FICA taxes). As an airline, it was required to collect excise taxes from its customers for payment to the IRS. § 4291. Because the amount of these taxes is “held to be a special fund in trust for the United States,” § 7501, they are often called “trust-fund taxes.” See, e. g., Slodov v. United States, 436 U. S. 238, 241 (1978). By early 1984, AIA had fallen behind in its payments of its trust-fund taxes to the Government. In February of that year, the IRS ordered AIA to deposit all trust-fund taxes it collected thereafter into a separate bank account. AIA established the account, but did not deposit funds sufficient to cover the entire amount of its trust-fund tax obligations. It nonetheless remained current on these obligations through June 1984, paying the IRS $695,000 from the separate bank account and $946,434 from its general operating funds. AIA and the IRS agreed that all of these payments would be allocated to specific trust-fund tax obligations. On July 19, 1984, AIA petitioned for relief from its creditors under Chapter 11 of the Bankruptcy Code, 11 U. S. C. § 1101 et seq. (1982 ed.). AIA unsuccessfully operated as a debtor in possession for three months. Accordingly, on September 19, the Bankruptcy Court appointed petitioner Harry P. Begier, Jr., trustee, and a plan" } ]

[ { "docid": "10219627", "title": "", "text": "House Report on § 547(b) recognized that where the debtor was able to make the withholding tax payments as evidenced by his delivery of the funds to the IRS, the monies should be labeled trust funds and the debtor’s duty as trustee regarded as completed. In a recent case in point In re Razorback Ready Mix Concrete Co., 45 B.R. 917, (Bkrtcy.E.D.Ark.1984), a Chapter 11 debt- or-in-possession sought recovery of FICA payments made to the IRS during the 90 day preference period. After analyzing the relevant Sections of the Internal Revenue Code, the Bankruptcy Code and pertinent legislative history, the bankruptcy court held that even though the debtor failed to place employees’ FICA withholding into a separate account, the fact that it designated such payments as taxes due and delivered them to the IRS was sufficient to create a trust fund on behalf of the government in accord with 26 U.S.C. 7501(a). The Razorback court explained: [Withholding] taxes are ordinarily never considered property of the employer having the duty to withhold. Initially, the tax monies are the property of the employees from whose wages the monies are withheld, and after the withholding is accomplished, 26 U.S.C. Section 7501(a) provides that the monies belong to the United States and are held in trust by the employer. Id. at 920. In Razorback, Bankruptcy Judge Robert F. Fussell specifically found that the funds paid to satisfy withholding taxes could not be traced to amounts withheld. He stated: Between the time that the taxes in question were withheld from the wages of the Debtor’s employees and the time that the payments were made to the Defendant, the general checking account of the Debtor [from which the payments were made] was reduced on occasions to near zero. Id. at 919. “The actual monies withheld, then, were undoubtedly not part of the payments made. The debtor in fact borrowed additional funds prior to the payments.” Id. at 921. The court nonetheless held that the withholding tax portions of the payments at issue were not “property of the debtor” within § 547(b). See also, In re D’Aiuoto," }, { "docid": "15048533", "title": "", "text": "and Dividend Sheet, and at the close of the Chapter 7 proceeding, the trustee made a payment of $29,071.99 to the IRS for federal employment taxes. At hearing, the IRS produced no evidence on how it had allocated either the mortgage proceeds or the trustee’s distribution to the debtor’s tax liabilities. The debtor’s principal officer, at an earlier hearing, testified that one of his goals, and those of the debtor in filing the original voluntary bankruptcy petition, was to make full payment to the IRS of all debt- or’s back taxes. QUESTION PRESENTED The crucial factual determination is the voluntariness of the debtor’s pre and post-petition actions, and whether the debtor, the IRS, or this Court may direct to which accounts, ie. “Trust Fund Tax,” interest, and/or penalty, the IRS must credit proceeds derived from the offered mortgage or the trustee’s Chapter 7 distribution. As we understand it, the basic rule for the application of payment is: in the absence of a creditor’s enforced collection measure, the debtor may direct the payments application; if he fails to do so, the right devolves upon the creditor; if the creditor fails to allocate in a timely manner, the Court will make the application according to its own notion of justice. See National Bank of the Commonwealth, of New York City v. Mechanics’ National Bank, 94 U.S. (4 Otto) 437, 489, 24 L.Ed. 176 (1877). INTRODUCTION A. Trust Fund Doctrine “Trust Fund Taxes” are those taxes withheld by employers from employees’ wages that are required to be held in trust for the United States Treasury pursuant to 26 U.S.C. § 7501. When making payments of wages to employees, 26 U.S.C. § 3402 requires employers to deduct and withhold income taxes. Liability for pay ment of the tax required to be deducted and withheld is placed upon the employer under 26 U.S.C. § 3403 . An employee receives credit for the withheld taxes regardless of whether the employer actually remits the “Trust Fund Taxes” to the government. Slodov v. United States, 436 U.S. 238, 243, 98 S.Ct 1778, 1783, 56 L.Ed.2d 251, 259 (1978)." }, { "docid": "8389936", "title": "", "text": "the BAP that commingling of the sales taxes and general funds does not prevent the creation of the trust nor tracing of the trust funds. See id. at 356. In addition, we concur that a sufficient nexus was established between the commingled statutory sales tax trust funds and the general funds through the use of the LIBT. See id. at 357. Debtors argue that a statutory tax trust fund was never created but instead the tax monies comprised part of the bankruptcy estate. We disagree. In Begier v. IRS, the Supreme Court found that a trustee in bankruptcy may not recover payments of certain withholding and excise taxes previously made to the IRS. 496 U.S. at 55, 110 S.Ct. at 2261. The Court stated that those payments were not preferential payments which could be avoided if made ninety days prior to the bankruptcy filing under 11 U.S.C. § 547(b) of the Bankruptcy Code. Id. at 58-60, 110 S.Ct. at 2262-63. It held that the tax monies were never property of the debtor but that a trust was created at the moment the taxes were collected or withheld. Id. at 60-62, 110 S.Ct. at 2264. In examining 26 U.S.C. § 7501, the Internal Revenue Code’s trust-fund tax provision, the Court found that § 7501 did not mandate segregation and that an employer cannot avoid the creation of a trust simply by refusing to segregate. Id. at 61, 110 S.Ct. at 2264. “The mere fact that [the debtor] neither placed the taxes it collected in a segregated fund nor paid them to the IRS does not somehow mean that [the debtor] never collected the taxes in the first place.” Id. at 60, 110 S.Ct. at 2264. Under Texas Tax Code § 111.016, “[a]ny person who receives or collects a tax or any money represented to be a tax from another person holds the amount so collected in trust for the benefit of the state.” A sales tax trust in which the debtor holds only legal title and not an equitable interest, is not property of the bankruptcy estate. 11 U.S.C. § 541(d);" }, { "docid": "1098533", "title": "", "text": "specific provisions of the IRC and did not overrule or even disapprove of cases like Miller, which did not relate to these specific provisions. In Begier, the Court began with recitation of the principle recited in AIA II: Equality of distribution among creditors is a central policy of the Bankruptcy Code. According to that policy, creditors of equal priority should receive pro rata shares of the debtor’s property. See, e.g., 11 U.S.C. § 726(b) (1982 ed.); H.R.Rep. No. 95-585, supra, at 177-178 [(1977)]. 110 S.Ct. at 2262-63. The Court went on to find, however, that Congress established that “a special fund in trust for the United States” was created as to employers obliged to withhold federal taxes from their employees on the basis of 26 U.S.C. § 7501(a). Id. at 2263. Next, the Court reasoned that legislative history pertinent to enactment of the Bankruptcy Code expressed an intention to overrule the holding of United States v. Randall, 401 U.S. 513, 517, 91 S.Ct. 991, 994, 28 L.Ed.2d 273 (1971), that the IRS had no priority over other creditors simply because the debtor had on hand general funds sufficient to satisfy its trust-fund tax obligations. Id. at 2265-67. It then held that the same legislative history supported the conclusions that the debtor’s voluntary payment of trust-fund obligations was sufficient to “establish the required nexus between the ‘amount’ held in trust and the funds paid,” such as to preclude the trustee’s recovery of the funds paid to the IRS as preferences. Id. at 2267. The Begier holding was therefore dependent upon the coalescence of several factors totally absent from the instant factual matrix.- Firstly, there was a federal statute which expressly declared that the withholding taxes in issue were held in a trust fund for the benefit of the IRS. Secondly, the Code relied heavily upon legislative history which established that withholding tax payments were not to be considered preferential and were to be considered to be held in trust for the IRS, as long as the debtor ultimately made the tax payments. Thirdly, the act of payment was found to be" }, { "docid": "1098518", "title": "", "text": "OPINION DAVID A. SCHOLL, Bankruptcy Judge. A. INTRODUCTION In Begier v. Internal Revenue Service, 496 U.S. 53, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990), the Supreme Court held that 26 U.S.C. § 7501(a) of the Internal Revenue Code (“the IRC”), when aided by legislative history expressing such an intention, 110 S.Ct. at 2265-67, provides that any voluntary payments of “trust-fund taxes” by a debtor allow the federal government to evade the central bankruptcy policy of “[ejquality of distribution among creditors,” id. 110 S.Ct. at 2262, and to retain those payments. In the instant contested matter, several labor unions seek to expand the concepts set forth in Begier to extend priority treatment to liabilities of a Debtor-former employer to certain Union Funds which are contractually “trust fund payments,” even though the Debtor has not made the payments and the “trust funds” have not been traced to specific proceeds in the hands of the Debtor. We conclude that, given the narrowness of the Begier holding, such an expansion of its principles would be unwarranted. Therefore, except as to sums segregated by the Trustee for the benefit of the Funds after the conversion of the case to Chapter 7, to which the Trustee has stipulated that the unions are entitled, the relief sought by the Unions must be denied. B. PROCEDURAL AND FACTUAL HISTORY KULZER ROOFING, INC. (“the Debt- or”) filed a voluntary Chapter 11 bankruptcy case on April 5, 1990. After filing a Plan of Reorganization and a Disclosure Statement on October 1, 1990, the Debtor forewent an opportunity to file an Amended Disclosure Statement on or before November 15,1990, and instead, on November 16, 1990, moved to voluntarily convert this case to a Chapter 7 case. On November 30, 1990, the conversion order was entered, and, on December 12, 1990, KENNETH E. CAROBUS, ESQUIRE (“the Trustee”) was appointed. The Trustee filed successive motions to continue the business operations of the Debtor, a roofing contractor, through on or about April 1,1991, at which time the Debt- or’s operations ceased. After a status hearing of October 10, 1991, this court entered an Order" }, { "docid": "11769183", "title": "", "text": "11 case of SAS, this Court entered an Order authorizing disbursement of funds from the Court Registry and permitting SAS to pay to the Internal Revenue Service $150,000.00. The check issued by SAS included the instructions by SAS to “apply to trust fund portion only.” Notwithstanding this instruction, the IRS applied the entire payment to penalties and interest on the delinquent amount of SAS’ taxes rather than to the trust fund portion as directed by SAS. The Debtors in this case filed their voluntary petition under Chapter 7 of the Bankruptcy Code in March, 1989. This Court granted the Debtors a discharge in July, 1989. In August of that year, the Internal Revenue Service filed a Proof of Claim in this Chapter 7 case in the amount of $258,-034.82. This claim was based on the 100% penalty assessed against Mr. Stanley, pursuant to 26 U.S.C. Section 6672, as a result of his failure to turn over to the Internal Revenue Service employee wage withholding and Federal Insurance Contributions Act (FICA) taxes. The Debtors objected to the Proof of Claim filed by the IRS, and in due course this Court overruled that objection and allowed the claim on the ground that the Debtors lacked standing. The Debtors timely filed a Motion for Rehearing which was granted. The only issue currently before this Court is whether these Chapter 7 Debtors have standing to object to the claim of the IRS. Section 502(a) of the Bankruptcy Code provides in pertinent part that a claim which is filed is allowed unless a party in interest objects. The scheme of distribution of the proceeds of the liquidation of the assets is governed by Section 726. Under this Section, no distribution can be made to the Debtor unless all unsecured claims allowed are paid in full with interest. This Court is satisfied that unless the Debtor can demonstrate that disallowing the claim would produce a surplus which would be available to the Debtor, the Debt- or lacks standing to object to the claim. In re Isaac Silverman, 37 B.R. 200, 201 (Bankr.S.D.N.Y.1982). The Debtors in this" }, { "docid": "16084636", "title": "", "text": "from the debtor’s estate. Begier v. United States Internal Revenue Service, 83 B.R. 324, 327 (Bankr.E.D.Pa.1988). This decision has not been appealed. However, the bankruptcy court determined that the trustee could recover as preferential transfers the $946,434 in payments made from the debtor’s operating account, less $246,024. In total, the court allowed the trustee to avoid $700,410 out of the $1,641,434 sought. Id. at 328. In explaining why it had treated as voidable preferences the transfers from the general operating account, the court reiterated the conclusion it had drawn in previous cases 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.” Id. at 329 (citing In re American Airlines, Inc., 70 B.R. 102, 105 (Bankr.E.D. Pa.1987); In re Rimmer Corp., 80 B.R. 337, 338-89 (Bankr.E.D.Pa.1987)). By order dated, August 15, 1988, the district court affirmed the decision of the bankruptcy court. This appeal followed. II. As we have noted, we must decide whether § 547(b) of the Bankruptcy Code allows a bankruptcy trustee to avoid as preferential transfers, payments of nonsegregated funds transferred from the debtor’s general operating account to the IRS during the pre-bankruptcy petition period on account of the debtor’s tax withholding obligations. Whether withheld taxes paid pre-petition to the IRS from nonsegregated funds commingled with other funds of the debtor are avoidable preferences depends on whether the funds are considered to be property of the debtor’s estate or held to be in trust for the IRS. The IRS argues that withheld taxes, paid pre-petition, are deemed to have been held in trust for the government under § 7501 of the Internal Revenue Code. The trustee responds that because the withheld taxes were commingled with the other funds rather than placed in a separate account, they may not be designated as trust funds and may be recovered. A. Section 547(b) of the Bankruptcy Code" }, { "docid": "4619829", "title": "", "text": "in property” as that term is used in § 541(a)(1).[ ] 110 S.Ct. at 2263 n. 3 (citations omitted). The Court further found that 26 U.S.C.A. § 7501(a) (West 1989), the IRS trust fund tax provision, did not require the debtor to segregate the amounts destined for trust fund tax purposes in a separate account as a prerequisite to the creation of the trust, but that a trust was created in favor of the IRS at the time these monies were collected or withheld. Finally, the Court determined that the assets actually used by the debtor to pay the IRS belonged to the trust. Relying on legislative history, the Court noted that both the House and Senate had demonstrated an interest not to treat trust fund taxes as property of the debtor. However, when commingled with other funds of the debtor, the Court observed that “Congress expected that the IRS would have to show some connection between the § 7501 trust and the assets sought to be applied to a debtor’s trust-fund tax obligation.” 110 S.Ct. at 2266 (emphasis in original). Begier’s significance is two-fold. In the first place, the Court holds that there is no requirement that withheld or collected taxes be segregated in order that they retain their classification as trust fund taxes. 110 S.Ct. at 2264. Secondly, the Court concludes that there must be some nexus between the trust and the assets sought to be applied to a debtor’s trust fund tax obligations. Id. at 2266-67 (citing United States v. Whiting Pools, Inc., 462 U.S. 198, 205 n. 10, 103 S.Ct. 2309, 2314 n. 10, 76 L.Ed.2d 515 (1983) (IRS cannot exclude funds from the estate if it cannot trace them to § 7501 trust property)). With regard to the nexus or tracing requirement, the Court stated in material part: The debtor’s act of voluntarily paying its trust-fund tax obligation therefore is alone sufficient to establish the required nexus between the “amount\" held in trust and the funds paid. In the absence of any suggestion in the Bankruptcy Code about what tracing rules to apply, we are" }, { "docid": "9782542", "title": "", "text": "to lift the automatic stay and to compel the turnover of the funds. The bankruptcy court denied the motion in a written opinion dated April 9, 1993, rejecting the city’s reliance on Begier v. IRS, 496 U.S. 53, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990). In re Sharon Steel Corp., 152 B.R. 450 (Bankr.W.DJPa. 1993). The city contends that Begier held that a trust is created for the benefit of the taxing authority whenever an employer withholds a portion of an employee’s wages as income taxes. Thus, in the city’s view, taxes withheld from an employee but not paid to the city do not become “property of the estate” when the employer files for bankruptcy even if the employer had not segregated the “trust” funds from its other assets. But the bankruptcy court distinguished Begier, primarily because Begier requires that the taxing authority show “some nexus between the trust and the assets sought to be applied to the debtor’s trust fund tax obligations” and, in the court’s view, the city could not “establish the required nexus with regard to the commingled funds in [Sharon Steel’s] possession.” Id. at 451-52. In other words, unlike in Begier, where the debtor had paid the taxes withheld to the Internal Revenue Service prior to filing its bankruptcy petition, thereby creating a segregated fund, Sharon Steel commingled the funds with its other assets and the funds remained commingled when Sharon Steel filed its Chapter 11 petition. The city appealed but the district court affirmed the bankruptcy court’s decision in a written opinion, agreeing with the bankruptcy court that “the facts of this case are distinguishable from [those in] Begier” and that the City “has failed to demonstrate the required nexus between the taxes and the commingled funds in the possession of the estate of Sharon Steel.” In re Sharon Steel Corp., Civ. No. 93-0736, at 3-4 (W.D.Pa. Feb. 11, 1994). The district court also distinguished Begier on the basis that the statutory “language establishing a ‘trust fund’ in the withheld taxes in Begier is absent in the pertinent statute and ordinance governing withholding taxes for" }, { "docid": "19284160", "title": "", "text": "and did not seek a reasonable cause exception, the IRS did, in fact, assess penalties against Pullman. Pullman paid $99,197.44 of the non — trust fund taxes with three checks. These amounts were last due without penalty on the first banking day after February 1, ($33,-255.51), on the first banking day after February 15, 1987 ($33,506.19), and on the first banking day after March 8,1987 ($32,435.74). Pullman did not make these deposits with a bank but mailed directly to the IRS the first two payments on February 27, 1987 and the third payment on March 18, 1987. Thus, this Court finds that Pullman’s later payment of these amounts — for a total of $99,197.44— was made on account of antecedent debt under § 547(b)(2). Accordingly, the Court affirms the Bankruptcy Court’s ruling on this issue. II. The Bankruptcy Court Had Sufficient Evidence To Determine That Portions of the Disputed Payments Were Made On Account of Trust Fund Taxes A payment is preferential, and thus, recoverable, only to the extent that the debtor had an identifiable property interest in the proceeds at the time of the payment. 11 U.S.C. § 547(b). It is well established that any payment made to the IRS that either is paid from funds held in trust or is directed to be paid to trust-fund liabilities are not considered to be preferential payments. Begier v. Internal Revenue Sen., 496 U.S. 53, 55-56, 110 S.Ct. 2258, 2261-62, 110 L.Ed.2d 46 (1990). A debtor has no property interest in funds paid to the IRS to the extent the IRS demonstrates that a “sufficient nexus” lies between the payment and income and social security taxes previously withheld by the debtor. Id. at 65-67, 110 5.Ct. at 2266-67. In the present case, the Bankruptcy Court found that the Government had established that $460,946.19 of the “disputed payments” — the first five payments mace by Pullman — represented income and social security taxes Pullman withheld from gross wages ; thus, the court.concluded that under Begier, those payments were held “in trust” for the Government and as a result, Pullman did not have" }, { "docid": "9782563", "title": "", "text": "the property of the estate includes the legal title, but not the beneficial interest of the property.’ ” Begier, 496 U.S. at 64, 110 S.Ct. at 2266 (citing 124 Cong.Ree. at 32,417 (remarks of Representative Edwards)). Next, Begier took the unusual step of treating the floor statements of a representa-five “as persuasive evidence of congressional intent.” Begier, 496 U.S. at 64 n. 5, 110 S.Ct. at 2266 n. 5. The Court quoted Representative Edwards for the proposition that “the Senate language specifying that withheld or collected trust-fund taxes are not part of the bankruptcy estate was deleted as ‘unnecessary since property of the estate does not include the beneficial interest in property held by the debtor as trustee.’ ” Id. at 64, 110 S.Ct. at 2266 (citing 124 Cong.Ree. at 32,417). Additionally, Begier placed great weight on Representative Edwards’ subsequent discussion of “the effects of the House language on the rule established by Randall [A] serious problem exists where ‘trust fund taxes’ withheld from others are held to be property of the estate where the withheld amounts are commingled with other assets of the debtor. The courts should permit the use of reasonable assumptions under which the Internal Revenue Service, and other tax authorities, can demonstrate that amounts of withheld taxes are still in the possession of the debtor at the commencement of the case. Begier, 496 U.S. at 64, 110 S.Ct. at 2266 (citing 124 Cong.Rec. at 32,417). From this statement, the Court concluded that “by requiring the IRS to ‘demonstrate that amounts withheld are still in possession of the debtor at the commencement of the case’ [i.e. at the filing of the petition] ..., Congress expected that the IRS would have to show some connection between the § 7501 trust and the assets sought to be applied to a debtor’s trust-fund tax obligations.” Begier, 496 U.S. at 65-66, 110 S.Ct. at 2266 (emphasis added). The Court continued by asking just “how extensive the required nexus must be.” Id. (emphasis added). Answering that question, the Court held that in Begier the pre-petition payment to the IRS satisfied the nexus" }, { "docid": "10219626", "title": "", "text": "the debtor to collect and segregate the withholding taxes and the United States’ consequent inability to trace a trust res takes the withholding tax payments out of 26 U.S.C. Section 7501(a) and places them within the reach of a preference action. To buttress this argument, the trustee relies on United States v. Randall, 401 U.S. 513, 91 S.Ct. 991, 28 L.Ed.2d 273 (1971). In Randall, because there was no specific fund from which withheld taxes were traceable, the Supreme Court decided the United States was not entitled to payment according to the priorities set forth in the Bankruptcy Act of 1898. Randall, however, is clearly distinguishable from the present situation. In Randall, the government was seeking payment from the bankruptcy estate for monies which the debtor had neglected to pay and remained unpaid at the time of filing. However, in the present case, the monies were paid by the debtor prior to his filing of a petition in bankruptcy. The estate here is trying to recover these monies, labeling them preferences. As noted above, the House Report on § 547(b) recognized that where the debtor was able to make the withholding tax payments as evidenced by his delivery of the funds to the IRS, the monies should be labeled trust funds and the debtor’s duty as trustee regarded as completed. In a recent case in point In re Razorback Ready Mix Concrete Co., 45 B.R. 917, (Bkrtcy.E.D.Ark.1984), a Chapter 11 debt- or-in-possession sought recovery of FICA payments made to the IRS during the 90 day preference period. After analyzing the relevant Sections of the Internal Revenue Code, the Bankruptcy Code and pertinent legislative history, the bankruptcy court held that even though the debtor failed to place employees’ FICA withholding into a separate account, the fact that it designated such payments as taxes due and delivered them to the IRS was sufficient to create a trust fund on behalf of the government in accord with 26 U.S.C. 7501(a). The Razorback court explained: [Withholding] taxes are ordinarily never considered property of the employer having the duty to withhold. Initially, the tax monies" }, { "docid": "8389938", "title": "", "text": "see also Begier, 496 U.S. at 59, 110 S.Ct. at 2263 (“Because the debtor does not own an equitable interest in property he holds in trust for another, that interest is not ‘property of the estate.’ ”). In addi tion, under Texas law, state sales taxes that are statutorily designated as being held in trust for the state are not the “property” of the debtor. See Tex. Tax Code Ann. § 111.016. Debtors argue that the Court in Begier “mandated” that “the methods allowed to trace funds into a common law trust cannot be applied to trace statutory trust funds.” The language in Begier contradicts Debtors’ assertions: Unlike a common-law trust, in which the settlor sets aside particular property as the trust res, § 7501 creates a trust in an abstract “amount”-a dollar figure not tied to any particular assets-rather than in the actual dollars withheld. Common-law tracing rules, designed for a system in which particular property is identified as the trust res, are thus unhelpful in this special context. Begier, 496 U.S. at 62-63, 110 S.Ct. at 2265 (footnote omitted) (emphasis added). The Court further explained the fact that “Congress expected that the IRS would have to show some connection between the § 7501 trust and the assets sought to be applied to a debtor’s trust-fund tax obligations.” Id. at 65-66, 110 S.Ct. at 2266 (citations omitted). This required nexus involves the tracing of the trust funds. In the absence of any suggestion in the Bankruptcy Code about what tracing rules to apply, we are relegated to the legislative history. The courts are directed to apply “reasonable assumptions” to govern the tracing of funds, and ... one such assumption [is] that any voluntary prepetition payment of trust-fund taxes out of the debtor’s assets is not a transfer of the debtor’s property_ Other rules might be reasonable .... Id. at 67, 110 S.Ct. at 2267 (emphasis added). The BAP’s opinion in In re Megafoods states, “The facts, issues, arguments and ease authorities cited in [In re Al Copeland Enterprises, Inc., 133 B.R. 837 (Bkrtcy.W.D.Tex.1991), aff'd 991 F.2d 233 (5th Cir.1993)" }, { "docid": "18505555", "title": "", "text": "OPINION DONALD R. SHARP, Bankruptcy Judge. This matter came on for consideration of the Motion of David and Lynn Gregory, parties in interest, to Direct Funds of the Bankruptcy Estate to Cover Trust Fund Portion of Taxes pursuant to regular setting. This opinion constitutes findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052 and disposes of all the issues presented to the Court. Factual and Procedural Background Gregory Engine and Machine Services, Inc., hereinafter referred to as (“Debtor”), filed for relief under Chapter 7 of the Bankruptcy Code on February 2, 1990. On February 14, 1991, David and Lynn Gregory, hereinafter referred to as (“Movants”), the one hundred percent stockholders of Debtor also sought protection under Chapter 13 of the Bankruptcy Code. The thread connecting these two bankruptcies is the existence of Debtor’s liability for uncollected trust fund taxes pursuant to 26 U.S.C.A. § 6672. Since Movants are the one hundred percent shareholders of Debtor, they are correspondingly liable for these trust fund taxes as responsible parties. There appears to be little disagreement as to the relevant amount of taxes at issue in this matter. The Internal Revenue Service, hereinafter referred to as (“IRS”), has filed a proof of claim in the amount of $65,000.00 of which approximately $39,-000.00 relates directly to Debtor's unpaid trust fund obligations. Apparently, due to the IRS’s status as the premier priority unsecured creditor, the IRS stands to receive, upon distribution, the majority of available assets of the estate. 11 U.S.C.A. § 507(a)(7). Also, due to the status of the trust fund taxes, to the extent such taxes are not paid through Debtor’s Chapter 7 bankruptcy such taxes are not discharged. 11 U.S.C.A. § 507(a)(7)(C). It is this last factor which concerns Movants since pursuant to 26 U.S.C.A. § 6672, the IRS can assess any unpaid balance of the trust fund taxes directly against the Movants as responsible parties. Movants have requested that the Court order the Chapter 7 Trustee in Debtor’s case to direct that any payments made on behalf of the IRS’s $65,000.00 tax claim be" }, { "docid": "4619830", "title": "", "text": "S.Ct. at 2266 (emphasis in original). Begier’s significance is two-fold. In the first place, the Court holds that there is no requirement that withheld or collected taxes be segregated in order that they retain their classification as trust fund taxes. 110 S.Ct. at 2264. Secondly, the Court concludes that there must be some nexus between the trust and the assets sought to be applied to a debtor’s trust fund tax obligations. Id. at 2266-67 (citing United States v. Whiting Pools, Inc., 462 U.S. 198, 205 n. 10, 103 S.Ct. 2309, 2314 n. 10, 76 L.Ed.2d 515 (1983) (IRS cannot exclude funds from the estate if it cannot trace them to § 7501 trust property)). With regard to the nexus or tracing requirement, the Court stated in material part: The debtor’s act of voluntarily paying its trust-fund tax obligation therefore is alone sufficient to establish the required nexus between the “amount\" held in trust and the funds paid. In the absence of any suggestion in the Bankruptcy Code about what tracing rules to apply, we are relegated to the legislative history. The courts are directed to apply “reasonable assumptions” to govern the tracing of funds, and the House Report identifies one such assumption to be that any voluntary pre-petition payment of trust-fund taxes out of the debtor’s assets is not a transfer of the debtor’s property. 110 S.Ct. at 2267. Begier involved trust fund taxes withheld and collected by the debtor which were paid to the IRS prepetition. The present case involves trust fund sales taxes collected by the debtor and trustee while operating the debtor’s business under Chapter 11, but which were not paid to the State. The collected taxes were originally deposited to a general operating account. Thereafter, the trustee segregated and deposited the sum of $23,657.62 to a Tax Escrow Account. This court, on the strength of Begier, has no reservation in concluding that the trustee’s voluntary segregation of trust fund retail sales taxes out of the general operating account serves to establish the required nexus between the amount held in trust and the funds paid. In effect," }, { "docid": "19284161", "title": "", "text": "property interest in the proceeds at the time of the payment. 11 U.S.C. § 547(b). It is well established that any payment made to the IRS that either is paid from funds held in trust or is directed to be paid to trust-fund liabilities are not considered to be preferential payments. Begier v. Internal Revenue Sen., 496 U.S. 53, 55-56, 110 S.Ct. 2258, 2261-62, 110 L.Ed.2d 46 (1990). A debtor has no property interest in funds paid to the IRS to the extent the IRS demonstrates that a “sufficient nexus” lies between the payment and income and social security taxes previously withheld by the debtor. Id. at 65-67, 110 5.Ct. at 2266-67. In the present case, the Bankruptcy Court found that the Government had established that $460,946.19 of the “disputed payments” — the first five payments mace by Pullman — represented income and social security taxes Pullman withheld from gross wages ; thus, the court.concluded that under Begier, those payments were held “in trust” for the Government and as a result, Pullman did not have an identifiable interest in those funds. In its appeal, Pullman argues that the Bankruptcy Court lacked sufficient evidence to determine which portion of these disputed payments were made on account of trust fund taxes. Pullman claims that the entire amounts of the disputed payments were transfers of Pullman’s property and that the Bankruptcy Court erred in not allowing full recovery of these payments as preferences. The Bankruptcy Court made extensive factual findings regarding what portion of the disputed payments were made on account of the trust fund taxes Pullman owed. As to the first three disputed payments, the Bankruptcy Court determined the “trust fund” portion of each payment from the employment tax worksheets included in the record; these worksheets were prepared and used by Pullman to calculated its weekly payroll and tax liability and Pullman stipulated to their admissibility. For each of the first three disputed payments, the check sent to the IRS corresponded to the exact total of the trust and non-trust fund tax liabilities shown on Pullman’s worksheet for each payroll period. Thus," }, { "docid": "9782547", "title": "", "text": "129 & n. 4 (Bankr.N.D.Ill.1993); In re Visiting Nurse Ass’n v. Bowen, 143 B.R. 633, 641 (W.D.Pa. 1992) (“Once a bankruptcy court makes a determination concerning whether a debtor has any legal or equitable interest in property based upon applicable state law, whether the property will come into the estate is a federal question.”) (internal quotations and citations omitted), aff'd, 986 F.2d 1410 (3d Cir.1993) (table). In considering this case we naturally focus first on Begier. In Begier, the trustee filed an adversary proceeding against the United States, claiming that the debtor’s pre-petition payment of withheld federal income tax to the Internal Revenue Service was a voidable preference under 11 U.S.C. § 647(b). The Supreme Court rejected the trustee’s position, holding that the payment of the taxes to the IRS was not a voidable preference because the funds transferred were not property of the debtor, but rather were held in trust for the government. Begier, 496 U.S. at 66-67, 110 S.Ct. at 2267. In finding that a trust existed, the Court relied on a section of the Internal Revenue Code, which provided that persons withholding taxes hold the withheld funds in trust for the IRS. The Court also found that the debtor’s pre-petition payments of withholding amounts to the IRS constituted a sufficient enough nexus to take the funds out of the bankruptcy estate. The city contends that Begier mandates that we reverse the district and bankruptcy courts’ orders denying the city’s motion to lift the automatic stay and compel turnover of the remaining funds withheld. The district court found two independent reasons for denying the city’s motion: (1) the city failed to show that a statutory trust had been created; and (2) the city failed to show the appropriate “nexus” between the debtor’s assets and the withholding funds. Sharon Steel and Citibank, as agent for certain of Sharon Steel’s creditors, contend that the district court correctly held that Begier is distinguishable and that therefore we should affirm its order affirming the bankruptcy court. Accordingly, we will discuss the district court’s two reasons for denying the City’s motion. b. Was" }, { "docid": "10219620", "title": "", "text": "that the IRS received more than it would have if the payments had not been made and it received a payment according to the order of distribution set forth in the Bankruptcy Code for a Chapter 7 liquidation. He argues that the transfer of monies to the IRS violated the scheme of distribution contemplated by the Bankruptcy Code in a Chapter 7, thus, producing this preferential effect. The IRS appearing by the United States Attorney opposes the trustee’s motion maintaining that there are issues of fact, including the possible recovery of substantial property by the bankruptcy estate, which precludes the trustee from meeting his burden of proof on the Section 547(b)(5) “receive more” issue. The thrust of its argument is that property allegedly fraudulently conveyed to the debtor’s wife, if recovered by the estate in a pending action, will so enlarge the bankruptcy estate as to permit not only a 100% distribution to it, but also to all creditors. In addition, the IRS made a cross-motion for summary judgment in its favor. It contends that the greater portion of each of the three payments was for withholding taxes which are funds held in trust for the United States pursuant to Section 7501(a) of the Internal Revenue Code. It argues that the trust fund monies were property of the government, not of the debtor, and therefore, not subject to a preference action. The trustee counters this by asserting that the failure of the debtor to collect and segregate the withholding taxes and the United States’ consequent inability to trace a trust res, took the alleged trust fund payments out of 26 U.S.C. § 7501(a) and places them within the reach of 11 U.S.C. § 547. II ISSUES A. Were payments of withholding taxes by the debtor to the United States Internal Revenue Service within the 90 day period preceding the filing of his petition in bankruptcy property of the debtor subject to recovery by a preference action pursuant to § 547(b)? B. Did payments made to the Internal Revenue Service within 90 days of bankruptcy provide the IRS with more than" }, { "docid": "13587632", "title": "", "text": "The Supreme Court concluded that funds held in trust were not “an interest of the debtor in property” within the meaning of § 547(b). Thus, the trustee failed to satisfy § 547(b) and therefore could not revoke specific payments made by the debtor. The Begier decision turns on the nature of the trust imposed by the Internal Revenue Code which differs from most other trusts. The Code simply declares: Whenever any person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States. 26 U.S.C. § 7501. Unlike normal trusts, no res is immediately identified with respect to withheld taxes. In his concurrence, Justice Scalia discussed this dilemma noting that “[w]hen I pay a worker $90 there is no clearly identifiable locus of the $10 in withheld taxes that I do not pay him. Indeed, if my total assets at the time of payment are $90 there is no conceivable locus.” Begier, at 71, 110 S.Ct. at 2269 (original emphasis). The Court resolved this dilemma by concluding that the “debtor’s act of voluntarily paying its trust-fund tax obligation ... [was] alone sufficient to establish the required nexus between the ‘amount’ held in trust and the funds paid.” Thus, the Court believed the trust existed from the moment the funds were withheld from the employees’ paychecks, but were simply not identified among the general commingled assets of the employer until the employer made a designated payment to the IRS. That designated payment sufficiently identified the assets of the trust and rendered those funds invulnerable to § 547(b). In summary, the Begier decision stands for the proposition that funds designated by the debtor for payment of trust fund taxes are part of a trust res under the Internal Revenue Code. Since designation by the debtor is crucial, the failure by Viking Ranches to designate its payments to the IRS renders the Begier decision inapplicable. Had Viking Ranches" }, { "docid": "4619825", "title": "", "text": "are essentially “held in trust” by the retailer for the taxing authority.... King v. Tennessee Department of Revenue (In re King), 117 B.R. 339, 341 (Bankr.W.D.Tenn.1990) (citations omitted). Based on this analysis, Judge Brown concluded that “retail sales taxes in Tennessee qualify as ‘trust fund taxes.’ ” Id. at 342. This court agrees with and has followed Judge Brown’s ruling in King. Kuykendall v. State of Tennessee Department of Revenue (In re Kuykendall), Adv. Proc. No. 90-3128, slip op. (Bankr.E.D.Tenn. Jan. 8, 1991). Accordingly, sales taxes collected by the debtor and trustee during the pendency of the debtor’s Chapter 11 case constitute trust fund taxes. The United States Supreme Court recently held that a debtor’s prepetition payments of trust fund taxes to the Internal Revenue Service (IRS) from its general accounts were not transfers of “property of the debtor” under 11 U.S.C.A. § 547(b) (West 1979), but were transfers of funds held in trust, and, accordingly, could not be avoided as preferences. Begier v. Internal Revenue Service, — U.S.-, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990). Consideration of the facts giving rise to the Court’s decision in Begier is important to a resolution of the contested matter presently before the court. The debtor, American International Airways, Inc. (AIA), had fallen behind in payments of its federal income, FICA, and excise taxes to the IRS. The IRS ordered the debtor to deposit all trust fund taxes it collected thereafter into a separate bank account. The debtor established the account but did not deposit sufficient funds to cover the entire amount of its trust fund obligations. It nonetheless remained current on these obligations by making up the deficiency from its general operating account. AIA commenced a case under Chapter 11, which was subsequently converted to Chapter 7. The Chapter 7 trustee filed a preference action in the bankruptcy court seeking to recover the entire amount the debtor paid the IRS for trust fund taxes within the ninety days preceding the filing of its bankruptcy petition. The bankruptcy court refused to permit the trustee to recover the money paid from the separate account" } ]

[ { "docid": "8172533", "title": "", "text": "then the income shall be computed on the basis of the period for which the separate return is made.” It is clear that full authority is given the Commissioner by regulation to fix and control the matter of taxable periods less than a year, and that the regulation thereof will usually have the same effect in both income tax and excess profits tax returns. The Commissioner’s regulations in 1943 were identical as to what should be a short taxable year for both kinds of taxes. As to income taxes we find Reg. Ill, Sec. 29.52-1, “Every corporation not expressly exempt from tax must make a return of income regardless of the amount of its net income. * * * A corporation having an existence during any portion of a taxable year is required to make a return. If a corporation was not in existence throughout an annual accounting period the corporation is required to make a return for that fractional part of a year during which it was in existence. A corporation is not in existence after it ceases business and dissolves, retaining no assets. * * * If the corporation has valuable claims for which it will bring suit during this period (i. e. after actual dissolution) it has retained assets and it continues in ex-istenceIt is too plain for discussion .that a corporation’s taxable year covers twelve months if it remains in existence, and that it does not under this regulation go out of existence unless it ceases business, dissolves and retains no valuable claims on which it may sue after dissolution. As to excess profits taxes, Reg. 112, Sec. 35.711-(a)4, applying Section 711(a) (3) of Subchapter E to tax periods less than twelve months, says: “A short taxable year is any taxable period of less than twelve months. If the period from the date of incorporation of a corporation to the end of its first accounting period, or the period from the beginning of its last accounting period to the date it ceases operations and is dissolved, retaining no assets, is a period of less than twelve" } ]

[ { "docid": "5192918", "title": "", "text": "of suing and being sued. If the corporation has valuable claims for which it will bring suit during this period, it has retained assets, and it continues in existence. A corporation does not go out of existence if it is merely turned over to receivers or trustees who continue to operate it. * * * [Emphasis supplied.] The italicized portion of the above regulations was added by T. D. 5247,1943 C. B. 216, 224, in order to conform Regulations 103 to section 135 (c) of the Revenue Act of 1942. Section 135 (c) of the 1942 Act amended section 47 of the 1939 Code by adding the following subsection: Seo. 47. Returns for a Period of Less Than Twelve Months. (g) Returns Where Taxpayer Not in Existence for Twelve Months. — In the ease of a taxpayer not in existence during the whole of an annual accounting period ending on the last day of a month, or, if the taxpayer has no such annual accounting period or does not keep books, during the whole of a calendar year, the return shall be made for the fractional part of the year during which the taxpayer was in existence. In describing this amendment both the House Ways and Means Committee (H. Kept. No. 2833, 77th Cong., 2d Sess., pp. 88, 90) and the Senate Finance Committee (S. Kept. No. 1631, 77th Cong., 2d Sess., pp. 105, 106) use substantially identical language. H. Kept. No. 2333, swpra, provides: Subsection (c) of this section is a technical amendment to section 47 of the Internal Revenue Code to define the period covered by the return of a taxpayer which was not in existence throughout a calendar year or fiscal year, on the basis of which its return would otherwise be made. Under existing law, such taxpayers must make a return for such period as the Commissioner requires under administrative regulations, or, in the absence of regulations, for the calendar or fiscal year, but it is now believed proper to provide uniform treatment for all such taxpayers by requiring return only for the period during which" }, { "docid": "11243995", "title": "", "text": "any part or lot shall not affect Buyer’s obligations to accept and pay for any other part or lot.” Although it may indeed be true that the activities just described were beneficial to the buyers in the sense that if conditions had changed they would have helped to protect the sales, nevertheless they turned out to be no part of the services that were part of the consideration for the Corporation’s commissions. They were at most provision against the-possible defeat of the sales. Next as to the argument that, the Corporation altogether ceased to exist on September 15. Although, again as a new question, we do not see why that should be determinative, we do not. think that the Corporation had ceased to exist. Section 29.52-1 of Regulations 111 of 1939 reads in part as follows: “ * * * If a corporation was not in existence throughout an annual accounting period * * * the corporation is required to make a return for that fractional part of a year during which it was in existence. A corporation is not in existence after it ceases business and dissolves, retaining no assets, whether or not under State law it may thereafter be treated as continuing as a corporation for certain limited purposes connected with winding up its affairs, such as for the purpose of suing and being sued. If the corporation has valuable claims for which it will bring suit during this period, it has retained assets, and it continues in existence. * * * ” We cannot avoid reading this language-as meaning that a corporation in process of liquidation is still in existence, if it, retains assets to pay its debts, or indeed to distribute among shareholders; and that, where that is true, its return-, must include the period of the “reten tion.” This may indeed seem to be a strange condition to impose, but in taxation it is often true that, not only in the beginning but at the ending, is the Word. Of a regulation, as well as of a statute it is usually, though not so rigidly," }, { "docid": "19031850", "title": "", "text": "income. The pertinent provisions of the regulation are: “§ 29.52-1. Corporation returns. Every corporation not expressly exempt from tax must make a return of income, regardless of the amount of its net income. * * * A corporation having an existence during any portion of a taxable year is required to make a return. If a corporation was not in existence throughout an annual accounting period (either calendar year or fiscal year), the corporation is required to make a return for that fractional part- of a year during which it was in existence.- A corporation is not in existence after it ceases business and dissolves, retaining no assets, whether or not under State law it may thereafter be treated as continuing as a corporation for certain limited purposes connected with winding up its affairs, such as for the purpose of suing and being sued. If the corporation has valuable claims for which it will bring suit during this period, it has retained assets, and it continues in existence. A corporation does not go out of existence if it is merely turned over to receivers or trustees who continue to operate it. * * *» (Emphasis supplied.) No corporation more completely could have ceased “business” than the Chris-tenson Steamship Company when in 1942 it transferred all of its assets, including its claim against the government, to the Sudden and Christenson Steamship Company and then was dissolved. Its nonexistence requiring no tax return from it remained, though as expressly provided in the regulation, the corporation was treated by its directors as existing for the purpose of pressing its claim against the government by “suing” if necessary. Since it so was not in existence and not required to make a return, it was not a “person [who] fails to make and file a return at the time prescribed by law or by regulation” of 26 U.S.C. § 3612. Hence the Commissioner could not impose upon the Christenson Steamship Company any liability to pay any income tax in 1943 and 1944. The liability of Hess as transferee is that created by 26 U.S.C. §" }, { "docid": "5192917", "title": "", "text": "the Henry Hess Co. case; but with all due respect to that learned court, we feel that our decision in the Hess case was correct. In reversing this Court, the Court of Appeals' relied primarily upon Treasury Regulations 111, section 29.52-1, which provides: Seo. 29.52-1. Corporation Returns. — Every corporation not expressly exempt from tax must make a return of income, regardless of the amount of its net income. * * * A corporation having an existence during any portion of a taxable year is required to make a return. If a corporation was not in existence throughout an annual accounting period (either calendar year or fiscal year), the corporation is required to make a return for that fractional part of a year during which it was in existence. A corporation is not in existence after it ceases business and dissolves, retaining no assets, whether or not under State law it may thereafter be treated as continuing as a corporation for certain limited purposes connected with winding up its affairs, such as for the purpose of suing and being sued. If the corporation has valuable claims for which it will bring suit during this period, it has retained assets, and it continues in existence. A corporation does not go out of existence if it is merely turned over to receivers or trustees who continue to operate it. * * * [Emphasis supplied.] The italicized portion of the above regulations was added by T. D. 5247,1943 C. B. 216, 224, in order to conform Regulations 103 to section 135 (c) of the Revenue Act of 1942. Section 135 (c) of the 1942 Act amended section 47 of the 1939 Code by adding the following subsection: Seo. 47. Returns for a Period of Less Than Twelve Months. (g) Returns Where Taxpayer Not in Existence for Twelve Months. — In the ease of a taxpayer not in existence during the whole of an annual accounting period ending on the last day of a month, or, if the taxpayer has no such annual accounting period or does not keep books, during the whole of" }, { "docid": "19031849", "title": "", "text": "amount equal to the estimated amount of the tax on the corporation. The payment in final settlement in 1944 was made in the same manner. The fundamental question here is the power of the Commissioner to impose a tax liability in 1943 and 1944 upon the Christenson Steamship Company, for the distributees are liable only for tax for which the corporation is liable. The Commissioner’s power to assess is confined by 26 U.S.C. § 3612 to “any person [who] fails to make and file a return * * * at the time prescribed by law or by regulation made under authority of law * * *. The Commissioner shall determine and assess all taxes * * * as to which returns * * * are so made under the provisions of this section.” (Emphasis supplied.) Pursuant to the above provision for a “regulation” respecting returns of a taxpayer, a treasury regulation 111 § 29.-52-1 for “Corporation Returns” provided that a fully dissolved corporation is not “in existence” for the making of corporate returns of its income. The pertinent provisions of the regulation are: “§ 29.52-1. Corporation returns. Every corporation not expressly exempt from tax must make a return of income, regardless of the amount of its net income. * * * A corporation having an existence during any portion of a taxable year is required to make a return. If a corporation was not in existence throughout an annual accounting period (either calendar year or fiscal year), the corporation is required to make a return for that fractional part- of a year during which it was in existence.- A corporation is not in existence after it ceases business and dissolves, retaining no assets, whether or not under State law it may thereafter be treated as continuing as a corporation for certain limited purposes connected with winding up its affairs, such as for the purpose of suing and being sued. If the corporation has valuable claims for which it will bring suit during this period, it has retained assets, and it continues in existence. A corporation does not go out of" }, { "docid": "17260487", "title": "", "text": "only part of what would otherwise be his taxable year. Sec. 1.6012-2 Corporations required to make returns of income. (a) In general * * * * * * * * * * (2) Existence of corporation. A corporation in existence during any portion of a taxable year is required to make a return. If a corporation was not in existence throughout an annual accounting period (either calendar year or fiscal year), the corporation is required to make a return for that fractional part of a year during which it was in existence. A corporation is not in existence after it ceases business and dissolves, retaining no assets, whether or not under State law it may thereafter be treated as continuing as a corporation for certain limited purposes connected with winding up its affairs, such as for the purpose of suing and being sued. If the corporation has valuable claims for which it will bring suit during this period, it has retained assets and therefore continues in existence. * * * The legislative history of secs. 441 and 443 indicates no intention to make any material changes from the provisions of the 1939 Code. See H. Rept. No. 1337, to accompany H.R. 8300 (Pub. L. 591), 83d Cong., 2d Sess., pp. A156-57 (1954)." }, { "docid": "19031856", "title": "", "text": "1944. The government contended, as it does here, that the right to the interest arose during the time the corporation owned the notes, so that the interest was fully earned by the corporation and should be taxed to it. This court held that this income was taxable to the shareholders and not to the corporation. A similar case is Herbert v. Riddell, D.C. S.D.Cal., 103 F.Supp. 369. This is not a case such as Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981, relied upon by the Tax Court and by the Commissioner. There a corporation negotiated a sale of an asset and then, in order to avoid taxes, transferred the property to its shareholders in order that they might consummate the sale, meantime retaining other assets and continuing to exist as a taxable entity. Here, the Steamship Company transferred all of its property to its shareholders and ceased to do business or to exist for tax purposes. There is no evidence that the dissolution of the Steamship Company was for tax avoidance rather than business reasons. Treasury Regulation 111, § 29.-22(a)-20, cited by the Commissioner, does not make the corporation subject to taxation. That regulation provides in part: “§ 29.22(a)-20. Gross income of corporation in liquidation. When a corporation is dissolved its affairs are usually wound up by a receiver or trustees in dissolution. The corporate existence is continued for the purpose of liquidating the assets and paying the debts, and such receiver or trustees stand in the stead of the corporation for such purposes. * * * Any sales of property by them are to be treated as if made by the corporation for the purposes of ascertaining the gain or loss. * * *\" (Emphasis supplied.) As indicated by the phrase of its title, “corporation in liquidation,” this regulation describes the usual occurrence of a corporation continuing in business for the purpose of liquidating its retained assets and winding up its affairs for dissolution. In the instant case, the Steamship Company was not in liquidation but was fully wound" }, { "docid": "5192920", "title": "", "text": "the taxpayer was in existence. Returns under this subsection will not be placed on an annual basis for income tax purposes, since they are not for the short period described in section 47 (a), which only applies to short periods caused by a change in accounting with the approval of the Commissioner. In the case of a corporate taxpayer, the corporation is not in existence after it ceases business and dissolves, retaining no assets, whether or not under State law it may thereafter be treated as continuing as a corporation for certain limited purposes connected with the winding up of its affairs, such as for the purpose of suing and being sued. If the corporation has valuable claims for which it will bring suit during this period, it has retained assets, and it continues in existence. Of course, a corporation does not go out of existence if it is merely turned over to receivers or trustees who continue to operate it. The above committee reports and, consequently, that portion of the above regulations added by T. D. 5247, supra, are concerned with defining the period to be covered by the return of a corporation “not in existence” throughout the taxable year, and the definition of a corporation “not in existence” is wholly subsidiary to that end. Apparently, the primary purpose of the above amendments to the statute and regulations was to prevent a corporation from spreading income over a full taxable year where the income is earned during the first few months of that year and the corporation is then dissolved with no prospect of future income* Cf. Kamin Chevrolet Co., 3 T. C. 1076. There is nothing to indicate that it was intended by either amendment to exempt from taxation a corporation otherwise in existence and chargeable with the receipt of taxable income. Therefore, unless the corporation clearly falls within the above definition of a corporation “not in existence,” the above language should not be construed to grant such an exemption. Moreover where, as here, the corporation was a claimant in a number of suits pending or filed during" }, { "docid": "14331236", "title": "", "text": "availed himself to the full of what the law permits. When an act is condemned as an evasion, what is meant is that it is on the wrong side of the line indicated by the policy if not 'by tlie mere letter of the law.” And there is no distinction whether we are dealing with transfers on dissolution of a partnership, or partial sales by corporations, or distribution of its assets in kind by the corporation. The Supreme Court in a very recent case has stated specifically: “a corporation may liquidate or dissolve without subjecting itself to the corporate gains tax, even though a primary motive is to avoid the burden of corporate taxation.” And there is authority preceding this declaration for the proposition that after such distribution, income derived from the property is taxable to the recipient of the distributed share, and not to the corporation. And even the Treasury Regulation recognizes that a corporation has ceased to exist, even though, under state law, it may have a continued existence for certain limited purposes connected with the winding up of its affairs. Here, the corporation went out of existence, the assets were distributed, the corporate books were closed, no corporate act appears on the Minutes subsequent to December 1, 1945. The Treasury Department recognizes that when this is preceded by a distribution of the assets, no gain or loss is realized by the corporation. The regulations provide: “No gain or loss is realized by a corporation from the mere distribution of its assets in kind in partial or complete liquidation, however they may have appreciated or depreciated in value since their acquisition.” And, under the facts in the case, there is no need to resort to another portion of Regulation 111, which states: “If the conduct of the affairs of a corporation continues after the expiration of its charter, or the termination of its existence, it becomes an association.” Nor to the cases which interpret this provision on which the Government relies. In these cases, the trier of facts had found that certain transactions claimed to have been entered" }, { "docid": "4746465", "title": "", "text": "which through default in making the reports or paying the license fees required by law have had their right to transact business suspended or have been stricken from the records. Consequently, so long as there is a statutory right to be reinstated, the proclamation of forfeiture for nonpayment of taxes does no more than forfeit the corporate right to do business, and does not extinguish the corporation as a legal entity. See Contractors, Laborers, Teamsters & Engineers Health & Welfare Plan v. Hroch, 757 F.2d 184, 190-91 (8th Cir.1985). Since a corporation with a forfeited charter has not been dissolved, the corporation continues to exist for limited purposes. Although the Arkansas statutes do not define the limited powers of a corporation whose charter has been forfeited, the statutes do set forth the rights and powers of a dissolved corporation in the process of winding up its affairs: (a) A dissolved corporation, its directors, officers, and shareholders, may continue to function for the sole purpose of winding up the affairs of the corporation in the same manner as if the dissolution had not taken place.... (b) In particular, and without limiting the generality of the foregoing: (1) The directors of a dissolved corporation shall not be deemed to be trustees of its assets; title to the assets shall not vest in them or in the shareholders but shall remain in the corporation until transferred by it in its corporate name; (4) The corporation may sue or be sued in its corporate name in all courts and participate in actions and proceedings, whether administrative, or otherwise, in its corporate name. Process may be served upon it or upon its behalf in the same manner as if there had been no dissolution^] Ark.Code Ann. § 4-26-1104 (1987). Since a corporation with a forfeited charter continues to have more vitality as a dissolved corporation, its powers should be at least equivalent to those of a dissolved corporation winding up its affairs. Under Arkansas law, a dissolved corporation retains legal title to its assets until a proper conveyance to the shareholders, and it follows that" }, { "docid": "21279207", "title": "", "text": "State of New York. Since the amount of the condemnation award was not actually paid by the City until December 3, 1956, the plaintiff argues that United received no taxable income during its legal existence and therefore no assessment can be made against it or its transferees for a tax which it could not be required to pay. The Government contends, on the contrary, that United was in existence for tax purposes for the entire year 1956 and was properly taxable on the amounts paid to it by the City of New York on December 3, 1956. The Government’s contention is supported by the case of J. Ungar, Inc. v. Commissioner, 244 F.2d 90 (2d Cir. 1957). The Ungar case held that where a corporation in the process of dissolution retained some assets to pay its debts, its existence for tax purposes continued during the period of such retention. The decision in that case relied on Section 29.52-1 of Regulation 111 of 1939 (now Regulation 1.6012-2(a) (2)) which provided that a corporation not in existence throughout an annual accounting period was required to make a return for that fractional part of a year when it was in existence and provided that “a corporation is not in existence after it ceases business and dissolves, retaining no assets * * (Emphasis added). The Ungar case held that since the corporation had retained some assets to pay its liabilities its existence was not terminated and it was liable for tax on the proceeds of previously earned commissions which it had assigned away. The decision in the Ungar case is persuasive on the question of United’s continued existence. As of January 1, 1957 United still maintained a bank account in excess of $1,000. The warrants for the condemnation award were made to United’s order and were endorsed by its Vice President. The cases relied on by the plaintiff, Commissioner of Internal Revenue v. Henry Hess Co., 210 F.2d 553, 559 (9th Cir. 1954) and Cold Metal Process Co. v. Commissioner, 247 F.2d 864, 874 (6th Cir. 1957) are distinguishable in that in each of" }, { "docid": "17260481", "title": "", "text": "United States v. Kingman, 170 F. 2d 408 (C.A. 5, 1948), decided under the 1939 Code. There, the corporation, reporting on the calendar year basis, had ceased doing business on April 3, 1943, and had distributed most of its assets to its sole stockholder; the corporation retained only claims to tax refunds and to U.S. bonds. The Court of Appeals, relying in part upon the predecessor of section 1.6012-2(a) (2), Income Tax Regs., held that the corporation’s proper taxable year for 1943 was the full calendar year rather than a short period of some 3 months. We followed the Kingman decision in Union Bus Terminal, Inc., 12 T.C. 197 (1949), affirmed per curiam 179 F. 2d 399 (C.A. 5, 1950). See also Rev. Rul. 56-483, 1956-2 C.B. 933. Although the 1954 Code made some changes in the statutes applied in Kingman, such changes do not affect the basic validity of the Court’s reasoning. In the instant case, Enterprises retained a valuable, income-producing asset, the purchase-money note and mortgage, until after October 31,1959. Applying the rules laid down in United States v. Kingman, supra; Union Bus Terminal, Inc., supra; and Rev Rul. 56-483, supra, we hold that the proper taxable year of Enterprises was the period November 1, 1958, to October 31, 1959, and not the short period November 1,1958, to January 31,1959. Respondent is not authorized to determine a deficiency for a period less than a taxpayer’s proper taxable year. Oklahoma Contracting Corporation, supra. Nor does the fact that the determination was made for the same period as was covered by the taxpayer’s return prevent petitioners from showing such period not to be a proper taxable year. Columbia River Orchards, Inc., supra. Respondent urges that we at least find a deficiency for the period November 1, 1958, to January 31, 1959. However, we have no more authority to make such a determination than does respondent. Columbia River Orchards, Inc., supra; Pittsburgh ds West Virginia Railway Co., supra. And if, as respondent contends, the return actually filed by Enterprises, being for an improper taxable year, was not such a return as" }, { "docid": "5192916", "title": "", "text": "in question was ordered paid to the Trustee. It was the sole plaintiff in two of these actions and was the sole defendant in another. In that year, 1949, it was made a plaintiff in two actions filed against the United States for the same reason the corporation was made party to the agreements and documents in the Henry Hess Co. case. We think these facts require the same holding as in the Henry Hess Co. case, and therefore we rule that Cold Metal was in existence for tax purposes during 1949. Where the corporate entity is still used so extensively in aiding its stockholders to realize on claims which it has assigned to them, to borrow the words of Justice Douglas in the case of United States v. Joliet & Chicago R. Co., 315 U. S., 44, 48 (1942), “The umbilical cord between it and its stockholders has not been cut.” We realize that the above holding is contrary to the opinion of the United States Court of Appeals for the Ninth Circuit in the Henry Hess Co. case; but with all due respect to that learned court, we feel that our decision in the Hess case was correct. In reversing this Court, the Court of Appeals' relied primarily upon Treasury Regulations 111, section 29.52-1, which provides: Seo. 29.52-1. Corporation Returns. — Every corporation not expressly exempt from tax must make a return of income, regardless of the amount of its net income. * * * A corporation having an existence during any portion of a taxable year is required to make a return. If a corporation was not in existence throughout an annual accounting period (either calendar year or fiscal year), the corporation is required to make a return for that fractional part of a year during which it was in existence. A corporation is not in existence after it ceases business and dissolves, retaining no assets, whether or not under State law it may thereafter be treated as continuing as a corporation for certain limited purposes connected with winding up its affairs, such as for the purpose" }, { "docid": "5192919", "title": "", "text": "a calendar year, the return shall be made for the fractional part of the year during which the taxpayer was in existence. In describing this amendment both the House Ways and Means Committee (H. Kept. No. 2833, 77th Cong., 2d Sess., pp. 88, 90) and the Senate Finance Committee (S. Kept. No. 1631, 77th Cong., 2d Sess., pp. 105, 106) use substantially identical language. H. Kept. No. 2333, swpra, provides: Subsection (c) of this section is a technical amendment to section 47 of the Internal Revenue Code to define the period covered by the return of a taxpayer which was not in existence throughout a calendar year or fiscal year, on the basis of which its return would otherwise be made. Under existing law, such taxpayers must make a return for such period as the Commissioner requires under administrative regulations, or, in the absence of regulations, for the calendar or fiscal year, but it is now believed proper to provide uniform treatment for all such taxpayers by requiring return only for the period during which the taxpayer was in existence. Returns under this subsection will not be placed on an annual basis for income tax purposes, since they are not for the short period described in section 47 (a), which only applies to short periods caused by a change in accounting with the approval of the Commissioner. In the case of a corporate taxpayer, the corporation is not in existence after it ceases business and dissolves, retaining no assets, whether or not under State law it may thereafter be treated as continuing as a corporation for certain limited purposes connected with the winding up of its affairs, such as for the purpose of suing and being sued. If the corporation has valuable claims for which it will bring suit during this period, it has retained assets, and it continues in existence. Of course, a corporation does not go out of existence if it is merely turned over to receivers or trustees who continue to operate it. The above committee reports and, consequently, that portion of the above regulations added by" }, { "docid": "17260480", "title": "", "text": "1, 1959. Under the circumstances, petitioners have not demonstrated that the substance of the transaction was different from its form. We believe that the note and mortgage were distributed on December 1, 1959, the date indicated by the formal assignment. Section 441(a) provides, “taxable income shall be computed on the basis of the taxpayer’s taxable year.” Section 441(b)(3), section 1.441-1 (b) (iii), Income Tax Regs., and section 443(a) (2) provide that the taxpayer’s “taxable year” may be a period of less than 12 months if the taxpayer is in existence during only part of what would otherwise be his taxable year. Section 1.443-1 (a) (2), Income Tax Regs., provides, in part, that “a dissolving corporation * * * is required to file a return for the short period from * * * [the beginning of its taxable year] to the date it goes out of existence.” The question of whether a corporation has gone out of existence, so as to make its proper “taxable year” a period of less than 12 months, was considered in United States v. Kingman, 170 F. 2d 408 (C.A. 5, 1948), decided under the 1939 Code. There, the corporation, reporting on the calendar year basis, had ceased doing business on April 3, 1943, and had distributed most of its assets to its sole stockholder; the corporation retained only claims to tax refunds and to U.S. bonds. The Court of Appeals, relying in part upon the predecessor of section 1.6012-2(a) (2), Income Tax Regs., held that the corporation’s proper taxable year for 1943 was the full calendar year rather than a short period of some 3 months. We followed the Kingman decision in Union Bus Terminal, Inc., 12 T.C. 197 (1949), affirmed per curiam 179 F. 2d 399 (C.A. 5, 1950). See also Rev. Rul. 56-483, 1956-2 C.B. 933. Although the 1954 Code made some changes in the statutes applied in Kingman, such changes do not affect the basic validity of the Court’s reasoning. In the instant case, Enterprises retained a valuable, income-producing asset, the purchase-money note and mortgage, until after October 31,1959. Applying the rules" }, { "docid": "11243996", "title": "", "text": "existence. A corporation is not in existence after it ceases business and dissolves, retaining no assets, whether or not under State law it may thereafter be treated as continuing as a corporation for certain limited purposes connected with winding up its affairs, such as for the purpose of suing and being sued. If the corporation has valuable claims for which it will bring suit during this period, it has retained assets, and it continues in existence. * * * ” We cannot avoid reading this language-as meaning that a corporation in process of liquidation is still in existence, if it, retains assets to pay its debts, or indeed to distribute among shareholders; and that, where that is true, its return-, must include the period of the “reten tion.” This may indeed seem to be a strange condition to impose, but in taxation it is often true that, not only in the beginning but at the ending, is the Word. Of a regulation, as well as of a statute it is usually, though not so rigidly, true that, “having determined that different tax consequences shall flow from different methods by which the shareholders of a closely held corporation may dispose of corporate property, we accept its mandate.” United States v. Cumberland Public Service Co., supra, 338 U.S. 451, at page 456, 70 S.Ct. 280, at page 282. Order affirmed. . Treasury Regulations 111, 1939: § 29.22 (a)-20; O'Sullivan Rubber Co. v. Commissioner, 2 Cir., 120 F.2d 845; Fairfield S.S. Corp. v. Commissioner, 2 Cir., 157 F.2d 321, 323. . United States v. Cumberland Pub. Serv. Co., 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251; United States v. Horschel, 9 Cir., 205 F.2d 646; Telephone Directory Advertising Co. v. United States, Ct.Cl., 142 F.Supp. 884." }, { "docid": "5008129", "title": "", "text": "Section 278. The first of these principles is that corporations should not be able to avoid their debts and other liabilities by dissolution. It is for this purpose, and to enable corporations to dispose of their affairs in an orderly fashion, that the three-year winding-up provision was created. The second principle reflected in Section 278 is that there should be a definite point in time at which a corporation is terminated. See Bishop v. Schield Bantam Co., 293 F.Supp. 94, 96 (N.D.Iowa 1968). To allow a proliferation of suits dependent upon the time which it takes a corporation to wind up its business would be unfair to the corporation and contrary to the purpose of orderly and timely dissolution. Continued prosecution of such suits would contribute to a “continual dribble of business activity” which might prolong the winding-up process indefinitely while directors and shareholders become harder to locate and records of the corporation become stale or misplaced. Id. See also n. 4, supra. Section 278 represents a workable compromise between these two principles. The corporation is continued so that those who have been aggrieved by its activities may come forward with their claims. But after a reasonable time, the right to assert such claims is extinguished and the corporation is allowed to close its affairs without further threat of additional financial liabilities. RAC is bringing to a close its business, and its activities are consistent with that end. While the corporation is still holding assets, it naturally retains a board of directors, holds meetings, issues reports and invests its assets. To do otherwise might be a breach of the fiduciary duty owed by the directors of the corporation to manage the corporation’s affairs. Nevertheless, three years have passed since dissolution, and although RAC is still conducting certain proceedings brought during the winding-up period, it has lost the capacity to sue and be sued in new actions, including the one instituted by the plaintiff here. NEW YORK LAW The plaintiff contends that even though RAC does not have capacity to be sued under Delaware law, it has the capacity to be" }, { "docid": "5192912", "title": "", "text": "whereby the funds would be distributed as in the instant case. However, aside from the unreality of such an agreement where one stockholder receives nothing until the other stockholders have been paid in full, the trustee, which was taking the principal risk, might well have objected to someone other than itself administering the assets. Also, as was pointed out in the case of First Nat. Bank of Greeley, Colo. v. United States, supra, cited by respondent, where the assets are conveyed to the stockholders and then to a trustee, the trustee is normally the agent of the stockholders rather than the agent of the corporation. See also Acampo Winery & Distilleries, Inc., 7 T. C. 629. Therefore, in the instant case it cannot be said that the Trustee was in effect the agent of Cold Metal or that the salé of the stock to the Trustee lacked substance. Respondent contends in the alternative that, even if the Trustee was not a trustee in liquidation, Cold Metal continued to exist through the year 1949 under the laws of Ohio and was in existence for Federal income tax purposes. Unquestionably some life remained in Cold Metal in 1949 under the laws of the sovereign which brought it into being and determines the time of its death. Even after a corporation has filed a certificate of dissolution, the Ohio General Code, section 8623-80, provides: it shall continue for the sole purpose of paying, satisfying and discharging any existing liabilities and obligations, collecting and distributing its assets and doing all other acts required to adjust, settle and wind up its business and affairs, and it may do all such acts and may sue and be sued in its corporate name. The question remains, however, as to whether Cold Metal was dead for tax purposes even though, living under the locpi law. Henry Hess Co., 16 T. C. 1363, revd. (C. A. 9) 210 F. 2d 553, is the only case cited which is in point, and we have found no other. Petitioner cites Carter v. Commissioner, (C. A. 2) 170 F. 2d 911, and" }, { "docid": "17589362", "title": "", "text": "winding up, including the collection of assets, disposal of properties and discharge of liabilities: (a) A dissolved corporation continues its corporate existence but may not carry on any business except that appropriate to wind up and liquidate its business and affairs; including: (1) Collecting its assets; (2) Disposing of its properties that will not be distributed in kind to its shareholders; (3) Discharging or making provisions for discharging its liabilities; (4) Distributing its remaining property among its shareholders according to their interest; and (5) Doing every other act necessary to wind up and liquidate its business and affairs. Immediately following this subsection is only one additional provision, “[t]he administrative dissolution of a corporation does not terminate the authority of its registered agent.” § 79-4-14.21(d). In comparison, the enumerated retained powers of a voluntarily dissolved corporation in Subarticle A, Section 79—4—14.05(b)(1)—(7) are broader and include the ability to commence litigation cited by Galen as well as the continued authority of the corporate registered agent. That only the continued authority of the registered agent is included in Subarticle B governing involuntary dissolution dictates the narrow scope of this subsection. Neither initiation of a bid protest over a contract award made during the time of that dissolution, nor the grant of a new contract, is winding up or liquidating, within the activity limits of an administratively dissolved corporation. Accordingly, Galen lacked standing to litigate and lacked the ability to contract. As such, it cannot show the prejudice required to qualify as an interested party with respect to protesting the award of the contract at issue to CRA. Galen, however, cites curative provisions in Mississippi law. By satisfying administrative and tax deficiencies, an administratively dissolved corporation may be reinstated and “resumes carrying on its business as if the administrative dissolution never occurred.” Miss.Code Ann. § 79—4-14.22(c). As a result, “actions taken [by the corporation] during the period of ministerial dissolution are those of the corporation, since the dissolution, through the thaumaturgic power of the law, never took place.” 3 Encyclopedia of Mississippi Law, § 22.244 (Sept.2006 update). Retroactive reinstatement, “revivor,” a legal fiction, legitimizes" }, { "docid": "17260486", "title": "", "text": "1959. SEC. 441. PERIOD FOR COMPUTATION OP TAXABLE INCOME. (b) Taxable Peak. — Por purposes of this subtitle, the term “taxable year” means— Sfc 3ft # * 4 $ * (3) the period for which the return is made, if a return is made for a period of less than 12 months. Sec. 1.441-1 Period for computation of taxable income. (b) Taxable year. (1) The term “taxable year” means— * * * * * ‡ * (iii) The period for which the return is made, if the return is made under section 443 for a period of less than 12 months, referred to as a “short period.” SEC. 443. RETÜRNS FOR A PERIOD OP LESS THAN 12 MONTHS. (a) Returns fob Short Period. — A return for a period of less than 12 months (referred to in this section as “short period”) shall be made under any of the following circumstances: * # * # * * # (2) Taxpayer not in existence for entire taxable year. — -when the taxpayer is in existence during only part of what would otherwise be his taxable year. Sec. 1.6012-2 Corporations required to make returns of income. (a) In general * * * * * * * * * * (2) Existence of corporation. A corporation in existence during any portion of a taxable year is required to make a return. If a corporation was not in existence throughout an annual accounting period (either calendar year or fiscal year), the corporation is required to make a return for that fractional part of a year during which it was in existence. A corporation is not in existence after it ceases business and dissolves, retaining no assets, whether or not under State law it may thereafter be treated as continuing as a corporation for certain limited purposes connected with winding up its affairs, such as for the purpose of suing and being sued. If the corporation has valuable claims for which it will bring suit during this period, it has retained assets and therefore continues in existence. * * * The legislative history of secs." } ]

[ { "docid": "22493490", "title": "", "text": "Justice ALITO delivered the opinion of the Court. Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern. We upheld a similar law in Abood v. Detroit Bd. of Ed., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled. I A Under the Illinois Public Labor Relations Act (IPLRA), employees of the State and its political subdivisions are permitted to unionize. See Ill. Comp. Stat., ch. 5, § 315/6(a) (West 2016). If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees. §§ 315/3(s)(1), 315/6(c), 315/9. Employees in the unit are not obligated to join the union selected by their co-workers, but whether they join or not, that union is deemed to be their sole permitted representative. See §§ 315/6(a), (c). Once a union is so designated, it is vested with broad authority. Only the union may negotiate with the employer on matters relating to \"pay, wages, hours [,] and other conditions of employment.\" § 315/6(c). And this authority extends to the negotiation of what the IPLRA calls \"policy matters,\" such as" } ]

[ { "docid": "17631566", "title": "", "text": "that conditioning the practice of law on membership in a state bar association does not itself violate the First Amendment. See Keller v. State Bar, 496 U.S. 1, 7-9, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990); Lathrop v. Donohue, 367 U.S. 820, 842-43, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1961) (plurality opinion); id. at 849, 81 S.Ct. 1826 (Harlan, J., concurring). Just as the national interest in peaceful labor relations justifies union shop provisions, see Abood v. Detroit Bd. of Educ., 431 U.S. 209, 222-23, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), a state’s interest in “regulating the legal profession and improving the quality of legal services,” Keller, 496 U.S. at 13, 110 S.Ct. 2228, similarly justifies compelled membership in an integrated bar. At the same time, the Court has recognized there is a constitutionally protected right to refuse to associate. See Abood, 431 U.S. at 233-36, 97 S.Ct. 1782; Roberts v. United States Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Two principles are now well established. The first is that, in the context of union shop provisions, employees can be compelled to give financial support to union collective bargaining activities. See Ellis v. Brotherhood of Ry., Airline and S.S. Clerks, 466 U.S. 435, 447-48, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984); Abood, 431 U.S. at 222-23, 97 S.Ct. 1782. Even though “compel[ling] employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests,” this impact is “constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” Abood, 431 U.S. at 222, 97 S.Ct. 1782. Employees can be made to pay both the direct costs associated with negotiating and administering collective-bargaining agreements and their share of the indirect expenses a union reasonably incurs in performing its duties as their exclusive representative. See Ellis, 466 U.S. at 448, 104 S.Ct. 1883. For example, compelled union dues may be used to pay for union conventions where members elect officers, establish goals, and “formulate overall union policy.” Id. at 448-49, 104" }, { "docid": "5831390", "title": "", "text": "no plan was in place; they have merely demonstrated that they received an inadequate notice. Although employers certainly owe nonunion member employees the general duty set forth in Hudson of ensuring that procedures exist “that minimize impingement and that facilitate a nonunion employee’s ability to protect his rights,” Hudson, 475 U.S. at 307 n. 20, 106 S.Ct. 1066, they owe no specific duty to employees to ensure that a proper Hudson notice is received by each employee before agency fees are deducted. Action more serious than the routine collection of fees is required before the duty discussed in Knight is triggered. Accordingly, we reverse and direct entry of summary judgment for the superintendents. REVERSED. . The plaintiffs sued the superintendents in their official capacity. . By the time the district court granted summary judgment, only four of the eight original plaintiffs retained standing to pursue their claims. Accordingly, only four plaintiffs— Richard DiGiacomo, Diane Foster, Barry Lee Parks, and Mark Albrecht — are currently before this court. . In Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), the Supreme Court held that a public employer and the union serving as the employees' exclusive bargaining representative may, consistent with the First Amendment, agree to require those employees who choose not to become union members to pay an \"agency fee” to the union \"to finance expenditures by the Union for the purposes of collective bargaining, contract administration, and grievance adjustment.” Id. at 225-26, 97 S.Ct. 1782. This is because \"Congress determined that it would promote peaceful labor relations to permit a union and an employer to conclude an agreement requiring employees who obtain the benefit of union representation to share its cost, and that legislative judgment was surely an allowable one.” Id. at 219, 97 S.Ct. 1782 (citing Railway Employees’ Dept. v. Hanson, 351 U.S. 225, 235, 76 S.Ct. 714, 100 L.Ed. 1112 (1956)). . The school districts may withhold agency fees from the plaintiffs' paychecks without the plaintiffs' authorization. See Cal. Ed.Code § 45061; Cumero v. Public Employment Relations Board, 49 Cal.3d 575," }, { "docid": "1420768", "title": "", "text": "and that those nonmembers objecting to the full agency fee would be obligated to pay only a reduced agency fee based solely on the cost of the union’s representational activities. Approximately a week after the first notice, the union sent all nonmembers a second notice containing the same information. A majority of the nonmembers, including the named plaintiffs, did not respond to either notice. After the payroll deductions began, the named plaintiffs filed this action seeking to represent a class of all nonunion employees in the bargaining unit. They contended that to ensure adequate protection of their First Amendment rights, the union could lawfully deduct the full amount of dues from their paychecks only if they affirmatively consented to contribute to the activities of the union not related to representation. The district court agreed, certified the class, and entered an injunction enjoining the union from collecting any more than the reduced agency fee from nonunion employees “unless the employee affirmatively consents to deduction of full union dues.” Mitchell II, 744 F.Supp. at 945. The union timely appealed. This court or dered the school district’s appeal dismissed because it was untimely. In its appeal, the union readily acknowledges that when a union collects fees under a union or agency shop agreement authorized by state law, there may be employees who object to the union’s political activities. The Supreme Court has held that under the First Amendment, employees must be given an opportunity to make such objections known and the fees these dissenting employees pay must be reduced by the amount the union spends on activities not necessary to its role as collective bargaining representative. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 240, 97 S.Ct. 1782, 1802, 52 L.Ed.2d 261 (1977). The union contends that the district court erred, however, in holding that the First Amendment requires more than an opportunity to object but additionally requires affirmative consent to the payment of full union dues before the full dues may be deducted. In other words, the union contends that dissenting nonunion employees need be given only an opportunity to “opt" }, { "docid": "22241579", "title": "", "text": "employer. See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 221-22, 97 S.Ct. 1782, 1792, 52 L.Ed.2d 261 (1977) (outlining the problems with multiple representatives including inter-union rivalries, dissension in the work force, the undermining of the advantages of collectivization etc.). Consequently, the National Labor Relations Act (29 U.S.C. §§ 151-169) is premised on such a system of exclusive representation. With all if its benefits, however, the exclusive agency agreement does come at a cost. When a government employer requires its employees to associate with a particular private organization, it infringes on its employees’ First Amendment associational rights and on liberty rights protected by the Fourteenth Amendment. See Abood, 431 U.S. at 222, 97 S.Ct. 1782; Hudson, 475 U.S. at 301,106 S.Ct. at 1073. The Supreme Court long ago resolved this problem by requiring employers to allow employees to opt out of union membership. Abood, 431 U.S. at 221-22, 97 S.Ct. at 1792s To prevent free riders from secur ing the benefits of collective bargaining without contributing to its cost, however, an employer may have a collective bargaining agreement with a union that requires employees who opt out of membership to contribute their fair share of the costs of collective bargaining. Id.; Tavernor, 226 F.3d at 844. As the plaintiffs rightly point out, this forced association, even in the fair-share payer scenario, still imposes in some way on associational rights. See Hudson, 475 U.S. at 301, 106 S.Ct. at 1073; Abood, 431 U.S. at 222, 97 S.Ct. at 1793; Hudson v. Chicago Teachers Union Local No. 1, 743 F.2d 1187, 1193 (7th Cir.1984), aff'd, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). It is possible, for example, that the union’s leadership, in its negotiations over wages and benefits, strongly favors employer-sponsored retirement plans, but a particular fair-share payer believes in higher salaries without government sponsored retirement plans. Or perhaps the union is negotiating for a health plan that includes coverage for fertility treatment to which the employee is morally opposed. The fair-share payer may have no choice but to support financially this bargaining activity (or, of course," }, { "docid": "19621922", "title": "", "text": "California Teachers Association, National Education Association, and Riverside City Teachers Association; and • Few v. United Teachers Los Angeles , No. 2:18-cv-09531-JLS-DFM : Motion to Dismiss Count II (Few Mem., Doc. 43) filed by United Teachers Los Angeles. I. BACKGROUND On June 27, 2018, the Supreme Court decided Janus and overruled Abood v. Detroit Board of Education , 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) and its progeny, holding that no form of payment to a union, including agency fees, can be deducted or attempted to be collected from an employee without the employee's affirmative consent. Janus , 138 S.Ct. at 2486. The Plaintiffs in Babb are current or former public-school teachers who refused to join teachers' unions because they disapproved of their political advocacy and collective-bargaining activities. (Babb Third Amended Complaint ¶¶ 14-20, Doc. 90.) Prior to Janus , the Plaintiffs were required to pay agency fees to the unions as a condition of their employment. (Id. ) See Cal. Gov. Code § 3546(a). Plaintiffs allege that the compulsory collection of agency fees violates Janus. (Babb Third Amended Complaint ¶ 21.) Plaintiffs bring federal claims for relief for violation of the First Amendment pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201, and California state law claims for conversion, trespass to chattels, replevin, unjust enrichment, and restitution. (Id. ¶¶ 41-42.) Plaintiffs seek two forms of relief: (1) that compulsory agency fees be declared unconstitutional and enjoined; and (2) that the Union Defendants be required to repay all agency fees they received before Janus. (Id. ¶ 43 c-j.) The Union Defendants move to dismiss all claims. (See Babb Mem. at 1.) Wilford is, for the purposes of the pending motions, identical to Babb. The Wilford Plaintiffs are also non-union teachers who allege that the compulsory collection of agency fees is unconstitutional after Janus. (Wilford First Amended Complaint ¶¶ 1-7, 25-29, Doc. 155.) They also bring federal claims for violation of the First Amendment pursuant to § 1983 (id. ¶¶ 41-47 ), and state law claims for conversion (id. ¶¶ 48-51) and" }, { "docid": "10982101", "title": "", "text": "amended its Public Employment Relations Act (PERA) to expressly authorize an agency shop system for union representation of public employees. The constitutionality of the amended Act was challenged in the Michigan courts and ultimately appealed to the United States Supreme Court. In Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), the Court held that an agency shop clause in a collective bargaining agreement between the Board of Education and the Detroit Federation of Teachers did not violate the first and fourteenth amendment rights of freedom of expression and association of nonunion members of the bargaining unit who were required to pay service fees, at least insofar as the service fees were used to finance union expenditures for the purposes of “collective bargaining, contract administration, and grievance adjustment.” Id. at 225-26, 97 S.Ct. at 1794. The Court also indicated that a service fee payor could not be required to fund union expenditures for political activity or ideological causes not germane to the union’s duties as collective bargaining representative. Id. at 235-36, 97 S.Ct. at 1799-1800. The Abood decision was not the first time that the Supreme Court had the opportunity to pass on the constitutional implications of union security provisions such as the agency shop. In Railway Employees’ Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed.2d 1112 (1956), the Court held that section 2, Eleventh, of the Railway Labor Act (RLA) as amended, 45 U.S.C. § 152, Eleventh, which authorized railway carriers and labor organizations acting as exclusive representatives of bargaining units to enter into union shop agreements, did not violate the first and fifth amendments to the Constitution. The Court acknowledged the congressional intent of eliminating the free rider problem by requiring those who enjoy the benefits of union representation to contribute to the support of the union. 351 U.S. at 231, 76 S.Ct. at 717. Further, the Court stated that such congressional action was a valid exercise of power under the commerce clause given the legitimate governmental interest in industrial peace and stabilized labor-management relations. Id. at 233-34," }, { "docid": "23314252", "title": "", "text": "POSNER, Circuit Judge. A union that has been certified as the exclusive bargaining representative for a group of employees must represent every employee in the bargaining unit, even those who don’t belong to the union. Correlatively, the union is entitled to charge the nonmembers their pro rata share of the expenses that it incurs in negotiating for and administering the collective bargaining agreement, and to ask the employer to deduct this pro rata share from the nonmembers’ wages. But if the union goes further and makes the nonmembers pay either the full union dues or an agency fee that exceeds the collective bargaining costs fairly chargeable to nonmembers, the union —and the employer — can get into legal trouble. If the collective bargaining agreement is with a public employer (state or local) that deducts the union’s agency fee from its employees’ wages, and part of the fee is used to advance the union’s political or ideological goals as distinct from defraying the union’s expenses of negotiating and administering the collective bargaining agreement, both the public employer and the union can be held liable in a suit under 42 U.S.C. § 1983 for violating the nonmembers’ right of free speech under the First Amendment (made applicable to the states by interpretation of the Fourteenth Amendment). See Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). What is more, the First Amendment has been held to require the public employer and the union to establish efficacious procedures, including notice and right to a hearing, for determining how much of the union’s proposed agency fee is proper. See Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986); Ping v. National Education Ass’n, 870 F.2d 1369 (7th Cir.1989). In September 1985 nine nonunion employees of Illinois state and local agencies brought this suit against the local of the American Federation of State, County, and Municipal Employees that represents those employees in collective bargaining, and against the employers themselves. Several weeks earlier, the union had decided that for the new school year" }, { "docid": "18415390", "title": "", "text": "to lobby about is attached as an appendix. The Supreme Court has considered whether compulsory membership in a labor organization and bar association and compelled financial support of the organizations, as a condition to employment or practice, violates the members’ right to freedom of association. In Railway Employees’ Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956) and Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1960) the Court held that mandatory union dues used to finance collective bargaining activities in a union shop (mandatory membership) did not violate plaintiffs’ rights under the First Amendment. In Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1960) (plurality opinion), the Court decided, relying on its decisions in Street and Hanson, that compelled membership in a state bar and exaction of compulsory dues to finance the bar did not deprive plaintiffs of their rights to freedom of association. However, the Court declined in Lathrop, on the basis of an inadequate record, to decide whether the use of bar fees to support legislation to which the plaintiffs were “ideologically opposed” deprived plaintiffs of the rights to free speech. The identical issue, in the context of a labor union, was again presented in Abood v. Detroit Board of Ed., 431 U.S. 209-97 S.Ct. 1782, 52 L.Ed.2d 261 (1976). In Abood, plaintiffs claimed that portions of a mandatory employment service charge levied upon non-union members (equal to union membership fees) were being used to support ideological and political causes which plaintiffs did not wish to support. The Court in Abood drew a distinction between funds spent for “collective bargaining activities” and funds spent to lobby on “ideological activities unrelated to collective bargaining activities.” The Court held that funds spent for the latter purpose were an impermissible intrusion on plaintiffs’ First Amendment rights while funds spent for collective bargaining activity, although an intrusion on plaintiffs’ First Amendment rights, were nonetheless justified by the important governmental interest of industrial peace. The Court elaborated on its analysis in Hanson and Street stating that in those cases, as" }, { "docid": "22448760", "title": "", "text": "the limited purposes of reviewing dismissal of this case, that there are circumstances in which the use of IOLTA accounts is necessary for legal representation and therefore, that clients would at times be compelled to allow their funds to be deposited in IOLTA accounts. 2. Does the IOLTA Rule Compel Speech by the Plaintiffs':? The client-plaintiffs allege that “the collection and use of interest, under color of state law, generated from the IOLTA trust accounts ..., especially for litigation that involves political or ideological causes, and for legislative or other forms of lobbying, deprive [plaintiffs] of [their] right to freedom of speech and association.” The lawyer-plain tiffs allege that forcing them to comply with the IOLTA Rule requires them to choose between serious curtailment of their practice of law or “associating with organizations whose actions offend [their] political and ideologieál beliefs” depriving them of their right to freedom of speech and association. The plaintiffs rely on the compulsory union fees and bar association dues cases for support. They argue that they are required to finance IOLTA program recipient organizations in the same way that dissenting union members and bar association members have been compelled to support political and ideological causes through the collection of fees and dues which the Supreme Court has found to be unconstitutional. In Abood, 431 U.S. 209, 97 S.Ct. 1782, Detroit school teachers challenged an “agency-shop” clause in their collective-bargaining agreement with the school board claiming that it violated their First Amendment rights. The agency-shop clause required employees who chose not to join the representative union to pay dues to support the union’s collective bargaining efforts to avoid allowing non-members to benefit from collective bargaining, as “free-riders’-, without paying. The Supreme Court found that “[t]o compel employees financially to support their collective-bargaining representative [had] an impact on their First Amendment interests.” Id. at 222, 97 S.Ct. at 1793. The Court held that unions could not use the dues of dissenters for political or ideological causes that were not germane to the collective-bargaining purpose of the agency-shop requirement. Id. at 235-36, 97 S.Ct. at 1799-1800. In the" }, { "docid": "14260652", "title": "", "text": "he disbelieves, is sinful and tyrannical.’ ” Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35 n. 31, 97 S.Ct. 1782, 1799-1800 n. 31, 52 L.Ed.2d 261 (1977) (quoting Thomas Jefferson, in I. Brant, James Madison: The Nationalist 354 (1948)). In order to assess whether plaintiffs state a claim under the doctrines embodied in these and other cases, it is necessary to determine, first, whether plaintiffs allege any compulsion by the mandate of the IOL-TA program and second, whether they allege that the IOLTA program associates them with any “speech.” A. Compulsion The Supreme Court has had occasion to consider, primarily in the context of unions, the First Amendment claims of those who object to compelled membership and dues in an organization. In Railway Employes’ Dep’t v. Hanson, 351 U.S. 225, 236-38, 76 S.Ct. 714, 720-22, 100 L.Ed. 1112 (1956), when faced with the contention that unions forced unwanted ideological and political associations on its members, the Court held that all employees in a bargaining unit could, as a condition of employment, be required to become members of a union. The justification for such compulsion was that the union shop (one in which union membership was mandatory) was necessary to eliminate “free riders,” employees who would benefit from the union without contributing financially to support its activities. See International Ass’n of Machinists v. Street, 367 U.S. 740, 761, 81 S.Ct. 1784, 1796, 6 L.Ed.2d 1141 (1961) (reviewing legislative history of Railway Labor Act). Although compelled financial support might well be thought ... to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, ... such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress. Abood, 431 U.S. at 222, 97 S.Ct. at 1792. This justification, however, is not limitless. For example, when unions engage in ideological or political activities unrelated to their status as collective bargaining agent its members may object on First Amendment grounds. Id. at 234, 97 S.Ct." }, { "docid": "9209167", "title": "", "text": "Relying on the Supreme Court's recent ruling in Janus v. American Federation of State, County, & Municipal Employees, Council 31 , --- U.S. ----, 138 S.Ct. 2448, 201 L.Ed.2d 924 (2018), Plaintiff now seeks reimbursement of the fair-share fees she and the putative class members paid to Defendants. DISCUSSION The discussion of this case must begin with the Supreme Court's decision in Janus , which held the Illinois law requiring certain employees pay fair-share fees violated the First Amendment. Prior to Janus , Illinois law was as follows: Under the Illinois Public Labor Relations Act (IPLRA), employees of the State and its political subdivisions are permitted to unionize. See Ill. Comp. Stat., ch. 5, § 315/6(a) (West 2016). If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees. §§ 315/3(s)(1), 315/6(c), 315/9. Employees in the unit are not obligated to join the union selected by their co-workers, but whether they join or not, that union is deemed to be their sole permitted representative. See §§ 315/6(a), (c). Janus , 138 S.Ct. at 2460. Because \"the union is required by law to provide fair representation for all employees in the unit, members and nonmembers alike,\" and \"[e]mployees who decline to join the union are not assessed full union dues,\" the law required non-union employees to pay fair-share fees, \"a percentage\" of the full union fee. Id. These fees could not be used for political expenditures. Id. at 2460-61. A similar scheme was held constitutional in Abood v. Detroit Board of Education , 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). Id. at 2460. Prior to Janus , the Supreme Court \"cited Abood favorably many times, and ha[d] affirmed and applied its central distinction between the costs of collective bargaining (which the government can charge to all employees) and those of political activities (which it cannot).\" Id. at 2497 (Kagan, J., dissenting). Nevertheless, in recent years the Supreme Court twice cast doubt on Abood 's continuing validity. Knox v. Serv. Emps." }, { "docid": "9209168", "title": "", "text": "deemed to be their sole permitted representative. See §§ 315/6(a), (c). Janus , 138 S.Ct. at 2460. Because \"the union is required by law to provide fair representation for all employees in the unit, members and nonmembers alike,\" and \"[e]mployees who decline to join the union are not assessed full union dues,\" the law required non-union employees to pay fair-share fees, \"a percentage\" of the full union fee. Id. These fees could not be used for political expenditures. Id. at 2460-61. A similar scheme was held constitutional in Abood v. Detroit Board of Education , 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). Id. at 2460. Prior to Janus , the Supreme Court \"cited Abood favorably many times, and ha[d] affirmed and applied its central distinction between the costs of collective bargaining (which the government can charge to all employees) and those of political activities (which it cannot).\" Id. at 2497 (Kagan, J., dissenting). Nevertheless, in recent years the Supreme Court twice cast doubt on Abood 's continuing validity. Knox v. Serv. Emps. Int'l Union, Local 1000 , 567 U.S. 298, 311, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) (\"Acceptance of the free-rider argument as a justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly ....\"); Harris v. Quinn , 573 U.S. 616, 635, 645-46, 635, 134 S.Ct. 2618, 189 L.Ed.2d 620 (2014) (stating \"[t]he Abood Court's analysis is questionable on several grounds\" and declining to extend Abood because of its \"questionable foundations.\"). In Janus , the Supreme Court overruled Abood , holding state laws compelling public employees who are not union members to pay fair-share fees to a union violate the free-speech rights of those non-union employees. 138 S.Ct. at 2460. The Supreme Court concluded \" Abood was wrongly decided\" and refused to allow \"unconstitutional exactions\"-mandatory fair-share fees-\"to continue indefinitely.\" Id. at 2486. Plaintiff is not the first to offer an argument based on Janus seeking recovery of fair-share fees paid prior to its pronouncement. Among this Court's colleagues to have considered these suits, there is a consensus concluding fair-share" }, { "docid": "19621921", "title": "", "text": "the Pleadings, and in the Alternative for Summary Judgment (Wilford Mem., Doc. 163) filed by American Federation of Teachers, California Federation of Teachers, California Teachers Association, Certificated Hourly Instructors, Long Beach City College Chapter, Coast Federation of Educators, Local 1911, Community College Association, Exeter Teachers Association, Mt. San Antonio College Faculty Association, Inc., National Education Association, Orange Unified Education Association, Saddleback Valley Educators Association, Sanger Unified Teachers Association, Savanna District Teachers Association, and South Orange County Community College District Faculty Association; • Matthews v. United Teachers Los Angeles , No. 2:18-cv-06793-JLS-DFM : Motion to Dismiss and for Judgment on the Pleadings, and in the Alternative for Summary Judgment (Matthews Mem., Doc. 27) filed by California Teachers Association, National Education Association, San Diego Education Association, and United Teachers Los Angeles; • Martin v. California Teachers Ass'n , No. 2:18-cv-08999-JLS-DFM : Motion to Dismiss (Martin State Mem., Doc. 59) filed by Eric Banks, Xavier Becerra, Arthur A. Krantz, Erich Shiners, and Priscilla Winslow (the \"State Defendants\") ; Motion to Dismiss (Martin Union Mem., Doc. 61) filed by California Teachers Association, National Education Association, and Riverside City Teachers Association; and • Few v. United Teachers Los Angeles , No. 2:18-cv-09531-JLS-DFM : Motion to Dismiss Count II (Few Mem., Doc. 43) filed by United Teachers Los Angeles. I. BACKGROUND On June 27, 2018, the Supreme Court decided Janus and overruled Abood v. Detroit Board of Education , 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) and its progeny, holding that no form of payment to a union, including agency fees, can be deducted or attempted to be collected from an employee without the employee's affirmative consent. Janus , 138 S.Ct. at 2486. The Plaintiffs in Babb are current or former public-school teachers who refused to join teachers' unions because they disapproved of their political advocacy and collective-bargaining activities. (Babb Third Amended Complaint ¶¶ 14-20, Doc. 90.) Prior to Janus , the Plaintiffs were required to pay agency fees to the unions as a condition of their employment. (Id. ) See Cal. Gov. Code § 3546(a). Plaintiffs allege that the compulsory collection of" }, { "docid": "1773438", "title": "", "text": "arbitration and rebate of agency fees violates the constitutional rights of those employees as the plan relates to fees used to finance political and ideological expenses of the CTU. In Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), the Supreme Court held that nonunion employees could not be compelled to contribute to political or ideological activities of a union. The majority in this case reaches a step further and creates a constitutional right not to be compelled to contribute to any activities that are not germane to collective bargaining, regardless of whether the activities are political or ideological. The majority further holds that the CTU plan is invalid in allowing for arbitration and rebate of those fees. I believe that we need not reach these issues. A. In 1981, the Illinois legislature passed a statute allowing local school boards to include in collective bargaining agreements a provision requiring nonunion employees “to pay their proportionate share of the cost of the collective bargaining process and contract administration, measured by the amount of dues uniformly required by members.” Ill.Rev.Stat. ch. 122 ¶ 10-22.-40(a). The Chicago School Board and the CTU included such a provision in their collective bargaining agreement effective September 1, 1982. That provision states in pertinent part: All full-time employees covered by this Agreement who are not members of the UNION shall ... pay to the UNION each month their proportionate share of the cost of the collective bargaining process and contract administration measured by the amount of dues uniformly required by members of the UNION. Agreement Between the Board of Education of the City of Chicago and the Chicago Teachers Union, Article 1, § 8.2 (hereinafter “agreement”). The CTU calculated its agency fee, and then adopted its plan for arbitration and rebate of fees by nonmembers. The plan allows nonunion members to object only to any expenditure of his or her proportionate share payments for political activities or causes, or for activities or causes involving ideological issues not germane to the collective bargaining process or contract administration. Plaintiffs allege that, in" }, { "docid": "18762594", "title": "", "text": "excuse employees from government-sanctioned, compelled membership in a union as a condition of continued employment. Hanson recognized that compelled union dues do infringe upon first amendment rights, but held that Congress’ desire to promote collective bargaining was a sufficiently compelling governmental interest to justify such an infringement. When explaining its justification of compulsory union dues, the Court alluded to the integrated bar as an a fortiori example of a type of required membership that passes constitutional muster. 351 U.S. at 238, 76 S.Ct. at 721. In International Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961), the Court considered a related issue also arising out of union membership required by the Railway Labor Act: whether compelled union dues could be used to finance election campaigns and lobbying activities. The Court avoided deciding this challenge on a constitutional basis, holding that the Act prohibited the use of compulsory dues for political purposes. 367 U.S. at 768, 81 S.Ct. at 1799. B. Use of Compulsory Fees for Political Purposes In Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), the Court faced a challenge to an agency shop agreement under which all teachers who failed to join the union were required to pay the union a service fee equal to the regular dues amount. Abood followed the rationale of Hanson and Street, supra, holding that the government’s interest in promoting collective bargaining and discouraging “free riders,” (employees who benefit from union representation without contributing financially), justified the agency shop agreement in question. The Court continued, however, to address the issue it chose to avoid in Hanson, Lathrop, and Street: whether fees compelled by law as a condition of continued employment could be used for political and ideological purposes. Abood first observed that former' Supreme Court decisions “established with unmistakable clarity that the freedom of an individual to associate for the purpose of advancing beliefs and ideas is protected by the First and Fourteenth Amendments, [citations omitted] ... [Contributing to an organization for the purpose of spreading a political message is protected" }, { "docid": "13684887", "title": "", "text": "the union-determined nonchargeable portion. The plaintiffs also seek damages. The first subclass seeks an award of compensatory or nominal damages, plus interest. See Complaint at 28, 11G. The second subclass seeks compensatory damages in the amount of the portion of the agency fee unlawfully collectively by the union, with interest, “and such other amounts as principles of justice and compensation warrant.” Id. at 11H. The plaintiffs also seek costs and attorneys’ fees and such other relief as proper. Discussion A. Validity of Agency Shop Agreements A union that has been certified as the exclusive bargaining representative for a group of employees must represent every employee in the bargaining unit, even those who do not belong to the unit. As a result, the union is entitled to charge the nonmembers their pro rata share of the expenses it incurs in negotiating and administering the collective bargaining agreement. That charge (called an agency shop fee) is deducted from the employee’s wages by the employer. If a public employer deducts the union’s agency fee from its employees’ wages, and part of the fee is used to advance the union’s political or ideological goals (as distinct from defraying the union’s expenses of negotiating and administering the collective bargaining agreement), both the public employer and the union can be held liable in a suit under 42 U.S.C. § 1983 for violating the nonmembers’ right of free speech under the First and Fourteenth Amendments. See Abood v. Detroit Bd. of Ed., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). The First Amendment requires that unions give nonmembers notice of what their fair share of dues will be (sometimes called “fair share notice”). Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). As to the content of this fair share notice, courts have held that the First Anendment “requires only that the union disclose as part of its initial explanation to employees'(1) such information that reveals to the employees major descriptive categories of expenses which will be assessed against the employees; (2) the component" }, { "docid": "1602811", "title": "", "text": "the agency service fee is, in and of itself, a reasonable accommodation. Next, the defendants argue that O’Brien unreasonably rejected their three proposals of accommodation. a. The Agency Service Fee as Reasonable Per Se i. Applicability of Abood The defendants maintain that Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261, grants them an unrestricted license to collect an agency ser vice fee from a religious objector, thus making such an accommodation reasonable per se. The Court dismisses this argument out of hand. Clearly, O’Brien cannot be forced to join a union or to outlay funds that the unions would use to champion political or ideological causes to which he objects. See Abood, 481 U.S. at 235-36, 97 S.Ct. 1782. “The fact that [O’Brien would be] compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement” on his First Amendment rights. Id. at 234, 97 S.Ct. 1782. A union can, however, impose agency service fees upon nonmembers to cover their proportional share of the costs associated with collective bargaining, contract administration, and grievance adjustment without offending the nonmembers’ First Amendment rights. See 431 U.S. at 225-26, 97 S.Ct. 1782. The vital role the union plays as an exclusive bargaining agent, the necessity to distribute costs of collective bargaining equally among employees benefiting therefrom, and the desirability of avoiding “free riders” justify the constitutional intrusion. See id at 222-23, 97 S.Ct. 1782. In light of this framework, had O’Brien objected only to having his payments to the SEA used for pro-abortion and pro-condom distribution purposes, then assessing a fair share fee (as opposed to full dues) against him would very well be a reasonable accommodation under the Abood line of cases and Title VII. See id. at 235-36, 97 S.Ct. 1782. This is not O’Brien’s only religious objection, however: He also objects to financially supporting an organization that champions these causes, an issue the Supreme Court has yet to consider and one that falls squarely within the bounds of Title VII. See Nottelson v. Smith Steel Workers D.A.L.U." }, { "docid": "5011163", "title": "", "text": "cases similar to the instant case has imposed substantial burdens on the complying party, courts in those similar cases have refused to issue protective orders restraining discovery. See, Beck v. Communications Workers of America, Civ. Action No. B-76-839 (D.C.Md. Aug. 18, 1979); Ball v. City of Detroit AFSCME Council of 25, Civ. No. Misc. 51-79 (D.C.Super.Ct. May 19, 1980). Additionally, the issues presented in the instant case are enormously complex and involve matters of great public importance. Plaintiffs have alleged that defendants’ use of service fees for purposes unrelated to collective bargaining has violated plaintiffs’ First Amendment rights. In Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), the Supreme Court held that non-union members could be charged a service or agency fee insofar as the service fee was used for the purposes of collective bargaining. Id. at 236, 97 S.Ct. at 1800. However, the Court stated that a union could not constitutionally spend funds, over objection, for the advancement of ideologic causes not germane to collective bargaining. Id. at 236, 97 S.Ct. at 1800. By way of footnote, the Court stated that the Court could not decide what activities were unrelated to collective bargaining in the absence of specific descriptions of union activities. Id. n. 33 at 236, 97 S.Ct. n. 33 at 1800. The resolution of the issues present in the instant case may very well turn on a determination of what activities are germane to collective bargaining. As the Supreme Court has already noted, any such determination can only be reached after union activities are specifically identified. It is entirely reasonable for plaintiffs to seek inspection of MEA financial records, for the period in issue, in order to specifically identify those union activities which may be unrelated to collective bargaining. In light of the manifest need to specifically describe and identify union activities and due to the complex nature of the instant inquiry, I find considerations of costs and inconvenience must give way to the search for factual concreteness. See, United States v. IBM, supra 83 F.R.D. at 109. Defendants’" }, { "docid": "8156683", "title": "", "text": "expenditures of non-members fees, the Court found improper an injunction restraining unions from collecting the nonmembers’ fees if the union could demonstrate that some of the money was allocated for expenses germane to collective bargaining. A dissenting employee, however, could seek and obtain a refund for portions of his fee spent on political causes under a formula agreed to by the union and the employee or, in the absence of an agreement, under a proportion ordered by the Court. More recently, in Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), the Court examined an agency shop agreement involving union of public employees whereby non-members were required to pay a fee to defray expenses from which they benefitted. The plaintiffs challenged the agency shop provision as violative of their First Amendment freedoms and contended that the union was engaged in unlawful expenditure of their fees for political and ideological causes with which they disagreed. On a motion for summary judgment, the Michigan courts had upheld the validity of the agency shop clause generally, and denied plaintiffs any relief on the issue of how their fees were spent because they did not object initially to the union about political contributions initially. In vacating that judgment the Supreme Court determined that the union and the employer could not compel dissenting non-union members to contribute to the support of ideological causes that they may oppose, but that the public employee union, as a condition of employment, could direct payment of fees to be expended on matters related to collective bargaining, contract administration, and grievance adjustment. The Court declared, To be required to help finance the union as a collective-bargaining agent might well be thought, therefore, to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit. But the judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor" }, { "docid": "2118164", "title": "", "text": "fact imposed [by the union] for purposes not germane to collective bargaining, a different problem would be presented.” Id. at 235, 76 S.Ct. at 720. See also International Ass’n of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961) (legislative history of Railway Labor Act mandated a construction that the act did not authorize expenditures by unions of funds on political causes unrelated to collective bargaining). These decisions rested on the implied principle that the governmental interest in trade unionism and the industrial peace that was anticipated justified the compromise of the First Amendment rights of dissenting employees. By governmental action these employees were compelled to associate with and participate in an organization with whose agenda and principles they disagreed. Later decisions of the Supreme Court expressly acknowledged the principle. See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 222, 97 S.Ct. 1782, 1792, 52 L.Ed.2d 261 (1977) (interference in employees’ First Amendment rights are justified by the legislative assessment of the importance of union shops to the system of labor relations); and Ellis v. Railway Clerks, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984). In Ellis the Court said: [B]y allowing the union shop at all, we have already countenanced a significant impingement on First Amendment rights. The dissenting employee is forced to support financially an organization with whose principles and demands he may disagree.... It has long been settled that such interference with First Amendment rights is justified by the governmental interest in industrial peace. Id. at 455-56, 104 S.Ct. at 1896. Because First Amendment freedoms are compromised by a state-authorized union or agency shop, any impingement must be drawn as narrowly as is consistent with the state’s interest in permitting an exclusive representative to represent all employees for collective bargaining purposes. In the context of state action, therefore, if a union strays from its permitted function of collecting funds for collective bargaining activities, its conduct will be prohibited. See Abood, 431 U.S. at 234-36, 97 S.Ct. at 1799-1800 (the First Amendment prohibits a state-employee union from collecting fees from nonunion" } ]

[ { "docid": "9448320", "title": "", "text": "event, Jarrett failed to object to the instruction at trial. Fed.R. Crim.P. 52(a). III. Selective Prosecution Jarrett also raises a claim of selective prosecution. He argues that it is not a claim which must be raised in a pretrial motion under Rule 12(b) of the Federal Rules of Criminal Procedure and, therefore, that he did not waive that defense by failing to file his motion until after the completion of the trial. We disagree. It seems clear that a request for dismissal based on selective prosecution must be raised before trial. United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977); United States v. Oaks, 508 F.2d 1403, 1404-05 (9th Cir.1974), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). In order to gain an evidentiary hearing on the issue of selective prosecution, the defendant must make a prima facie case based on facts “sufficient to raise a reasonable doubt about the prosecutor’s purpose.” United States v. Falk, 479 F.2d 616, 620-21 (7th Cir.1973). To do this, the defendant must show (1) that the prosecutor engaged in intentional discrimination based on an impermissible consideration, such as race, religion, or exercise of constitutional rights, United States v. Peskin, 527 F.2d 71, 86 (7th Cir.1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976), and (2) that “[w]hile others similarly situated have not generally been proceeded against because of conduct forming the basis of the charge against him, he has been singled out for prosecution.” United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). These issues bring into question the institution of the prosecution; Rule 12(b) requires such issues to be raised prior to trial. The sufficiency of these showings can, in the majority of cases, be determined without trying the general issue, which in this case was whether Jarrett was involved in the Orange Blossom robbery in violation of the Hobbs Act. While it is suggested in United States v. Wilson, 639 F.2d 500, 506 (9th Cir.1981) (Real, J., concurring), that a" } ]

[ { "docid": "1803502", "title": "", "text": "filed motions to dismiss based on selective prosecution on September 23 and 30, 1986. See rec. vol. II, docs. 71 & 81. Therefore, we do not address this contention. VII. Finally, Mann claims that various instances of government misconduct prevented Mann from receiving a fair trial. After considering Mann’s claim, reviewing the transcript, and applying the relevant law, we conclude that the alleged misconduct was either not improper or did not affect the outcome of the trial. See United States v. Martinez-Nava, 838 F.2d 411, 416-17 (10th Cir.1988). VIII. Based on the foregoing, we AFFIRM Mann’s convictions on the four mail fraud counts. Mann’s wire fraud conviction is REVERSED for insufficient evidence, and the trial court shall enter a judgment of acquittal on the wire fraud count. Mann’s convictions on the three counts of willfully failing to file tax returns are REVERSED, and we REMAND for a new trial on the willful failure to file counts. . The tape-recording admitted at trial, rec. supp. vol. IV at 89, consisted in its entirety of the following: Voice 1: And we welcome you back again Thursday for another interesting topic on the program, Opinion Please. Voice 2: This is KDXU, broadcasting from the site of Dick's Cafe. Mann: The only power that the IRS has over an individual is that which one gives the IRS and that which the IRS derives from the gun and through fear. Just as Satan has only that power over us as we give him, Satan’s little helpers have only that power which we give them. In my opinion there is no law, and never has been, which requires an individual American freeman to file a return or pay an income tax. The IRS and state gets its [sic] powers through terror and fear and not by the law when it comes to taxes. When a majority of a community becomes enslaved by terror, fear and ignorance, a community is helpless to protect the few remaining patriots who resist such tyranny. Self-imposed slavery which governs the minds of Utahans and its bureaucrats is the only danger to" }, { "docid": "8971577", "title": "", "text": "for federal or state tax purposes. As for Schmidt, what little evidence there is in the record of consultations with attorneys shows only that he spurned such advice. The willfulness and reliance instructions actually given by the district court — instructions in fact requested by appellants— were more suitably founded upon the evidence presented than the ones which the appellants claim, on appeal, they sought. F. Selective Prosecution Appellants Dunlap and Lewis next asserted that the district court erred in refusing to instruct the jury on their claim of selective prosecution. In order to establish a selective prosecution defense, a defendant must show that the prosecution brought against him had a discriminatory effect and was motivated by a discriminatory purpose. Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985). To succeed in such a showing, a defendant must demonstrate “both 1) that he has been ‘singled out’ while others similarly situated have not been prosecuted and 2) that the decision to prosecute him was ‘invidious or in bad faith; i.e., based upon such impermissible considerations as race, religion, or the desire to exercise his consti tutional rights.’ ” United States v. Greenwood, 796 F.2d 49, 52 (4th Cir.1986) (citations omitted). Dunlap and Lewis have contended that they offered evidence sufficient to satisfy both prongs of the Greenwood test. Arguably, both were prosecuted while at least five of each’s peers were not. Each then has claimed that views they had made known regarding government corruption and the voluntary nature of compliance with the tax laws were protected speech and were known to the government when it made its decision to go forward with the prosecution. We need not linger long in assessing the merits of the claim. It is well-settled that “[djefenses and objections based on defects in the institution of the prosecution” must be raised prior to trial. United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.), cert. denied sub nom, Salley v. United States, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977) (refusing to hear a selective prosecution claim" }, { "docid": "1803500", "title": "", "text": "the jury regarding the role of a summary witness, Mann “failed to offer any suggestions or admonitions ... at the time the matter arose.” United States v. Riebold, 557 F.2d 697, 705 (10th Cir.), cert. denied, 434 U.S. 860, 98 S.Ct. 186, 54 L.Ed.2d 133 (1977); cf. Fed.R. Crim.P. 30. Finally, Springer was available for cross examination, although Mann chose not to cross examine Springer. Under these circumstances, the trial court did not abuse its discretion in allowing the summary testimony and accompanying charts. See United States v. Kapnison, 743 F.2d 1450, 1457-58 (10th Cir.1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985); Harenberg, 732 F.2d at 1513-14; Carlson v. United States, 187 F.2d 366, 372 (10th Cir.) (no error when trial court admitted exhibits, without instructions, containing more concise compilation of information already admitted into evidence), cert. denied, 341 U.S. 940, 71 S.Ct. 1000, 95 L.Ed. 1367 (1951); United States v. King, 616 F.2d 1034, 1041 (8th Cir.) (summary charts proper when they fairly reflect evidence already introduced and witness who prepared charts subject to cross examination), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 829 (1980), cited in Harenberg, 732 F.2d at 1514. VI. Mann also claims that he was impermissibly selected for prosecution based upon his exercise of first amendment rights to speak regarding his views about the tax laws. Fed.R.Crim.P. 12(b) requires that “[d]efenses and objections based on defects in the institution of the prosecution” must be raised prior to trial. Because a selec tive prosecution claim clearly implicates the institution of the prosecution, it must be raised prior to trial. United States v. Jarrett, 705 F.2d 198, 204-05 (7th Cir.1983), cert. denied, 465 U.S. 1004, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984); United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977); United States v. Oaks, 508 F.2d 1403, 1404-05 (9th Cir.1974), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). The trial in this case was concluded on September 10, 1986, and Mann" }, { "docid": "8971578", "title": "", "text": "faith; i.e., based upon such impermissible considerations as race, religion, or the desire to exercise his consti tutional rights.’ ” United States v. Greenwood, 796 F.2d 49, 52 (4th Cir.1986) (citations omitted). Dunlap and Lewis have contended that they offered evidence sufficient to satisfy both prongs of the Greenwood test. Arguably, both were prosecuted while at least five of each’s peers were not. Each then has claimed that views they had made known regarding government corruption and the voluntary nature of compliance with the tax laws were protected speech and were known to the government when it made its decision to go forward with the prosecution. We need not linger long in assessing the merits of the claim. It is well-settled that “[djefenses and objections based on defects in the institution of the prosecution” must be raised prior to trial. United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.), cert. denied sub nom, Salley v. United States, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977) (refusing to hear a selective prosecution claim raised for the first time on appeal); Fed.R.Crim.P. 12(b)(1). Lewis’ and Dunlap’s failure to comply with the requirements of Rule 12(b)(1) constitutes a waiver by them of any claim that the prosecution was instituted for discriminatory reasons. United States v. Aguilar, 883 F.2d 662, 705 n. 44 (9th Cir.1989), cert. denied, — U.S. -, 111 S.Ct. 751, 112 L.Ed.2d 771 (1991); United States v. Berrigan, 482 F.2d 171, 174-176 (3d Cir.1973). G. Application of Sentencing Guidelines 1. The Base Offense Level Appellants contended during their sentencing hearing, and again now on appeal, that the base offense level calculated pursuant to Sentencing Guidelines Section 2T1.9(a), entitled “Conspiracy to Impair, Impede or Defeat Tax,” should have been 10 and not 14 as the district court held. (b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial: Under Section 2T1.9(a), the" }, { "docid": "22915492", "title": "", "text": "953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978), aff’d after remand, 619 F.2d 21 (9th Cir.), cert. denied, 449 U.S. 951, 101 S.Ct. 354, 66 L.Ed.2d 214 (1980). Indeed, the Choate court also rejected the defendant’s claim that the mail cover investigation imper-missibly chilled his first amendment rights. 576 F.2d at 180-81. . Where constitutional interests other than privacy are at stake, however, other amendments to the Constitution may very well provide protections which the fourth amendment does not. This explains why appellants' citation to Massi-ah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), does not advance their argument. In Massiah, a government informer placed a radio transmitter in his car during conversations with defendant subsequent to defendant’s arraignment on drug charges. The Court held that admission at trial of incriminating statements obtained in this manner violated defendant’s sixth amendment right to the assistance of counsel. Id. at 205, 84 S.Ct. at 1202. Assuming that such an investigative technique is permissible under the fourth amendment, the sixth amendment’s insistence that a defendant be afforded his counsel’s assistance at all critical periods provided a rationale for reversal completely apart from privacy concerns. . The SWP ultimately prevailed at trial on its claim that the government was liable under the Federal Tort Claims Act for invading the organization's privacy by the use of undercover informers. See Socialist Workers Party v. Attorney General of US., 642 F.Supp. 1357, 1422-23 (S.D.N.Y.1986). . The defense of selective prosecution is waived unless properly raised before trial. United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir.1974); United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.1977), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977). Nonetheless, we do not address the applicability of these cases because of the government’s failure to pursue this issue on appeal. . See, e.g., Lee. In the Lee decision, the court rejected defendant’s claim that the Air Force’s differing treatment of civilian and military traffic law offenders constituted selective prosecution. The Air Force referred civilians to the U.S. Attorney for prosecution in federal" }, { "docid": "5153182", "title": "", "text": "is unfairly selective because the government always nabs the bribe recipient, comes closer to a true selective prosecution claim. Defendant is entitled to an evidentiary hearing if he can make an initial showing that there is a “colorable basis” for his selective prosecution claim. United States v. Torquato, 602 F.2d 564 at 570 (3d Cir. 1979), United States v. Cammisano, 546 F.2d 238, 241 (8th Cir. 1976), United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974), United States v. Berrigan, 482 F.2d 171, 177 (3d Cir. 1973). He must adduce some credible evidence “tending to show the existence of the essential elements of [this] defense” and that the testimony would indeed be probative thereof. United States v. Berrios, 501 F.2d at 1211-12. See also United States v. Torquato, 602 F.2d at 570. That is, defendant must show the existence of facts sufficient “to raise a reasonable doubt about the prosecutor’s purpose”, United States v. Falk, 479 F.2d 616, 620-21 (9th Cir. 1973), and “to take the question past the frivolous stage”. United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir. 1974), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). The two elements of selective prosecution, which defendant has the burden of proving, United States v. Malinowski, 472 F.2d 850, 860 (3d Cir. 1973), include an allegation that the selection was deliberately based upon “an unjustifiable standard such as race, religion, or other arbitrary classification”, Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 669, 54 L.Ed.2d 604 (1978), Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446, or the exercise of a fundamental right, United States v. Smith, 523 F.2d 771, 782 (5th Cir. 1975), cert. denied, 429 U.S. 817, 97 S.Ct. 59, 50 L.Ed.2d 76 (1976), United States v. Swanson, 509 F.2d 1205, 1208 (8th Cir. 1975), United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972) and an allegation that others similarly situated have not been prosecuted for the same type of conduct which forms the basis of defendant’s prosecution. United States v. Kelly," }, { "docid": "1803499", "title": "", "text": "Springer acknowledged at the outset of his testimony that it was based on evidence already admitted by the district court, rec. supp. vol. VI at 452, and he reaffirmed this throughout his testimony, id. at 453, 460-62, 464. Following Mann’s objection that the summary witness was intruding upon the jury’s factfinding role, the district court stated before the jury that “with respect to the findings of fact, of course the jury is the finder of fact, Mr. Mann. He [Springer] is qualified as an expert to testify. They may totally disregard his testimony if they wish. That is their province.” Id. at 456. In its charge to the jury, the district court gave a similar instruction regarding the testimony of expert witnesses and also instructed the jury that they were the sole judges of the credibility of witnesses. Rec. supp. vol. XIII, Instr. Nos. 20-21. These instructions and the trial court’s comments before the jury were sufficient to address the concerns articulated in Scales. And while Mann complains that the trial court failed to instruct the jury regarding the role of a summary witness, Mann “failed to offer any suggestions or admonitions ... at the time the matter arose.” United States v. Riebold, 557 F.2d 697, 705 (10th Cir.), cert. denied, 434 U.S. 860, 98 S.Ct. 186, 54 L.Ed.2d 133 (1977); cf. Fed.R. Crim.P. 30. Finally, Springer was available for cross examination, although Mann chose not to cross examine Springer. Under these circumstances, the trial court did not abuse its discretion in allowing the summary testimony and accompanying charts. See United States v. Kapnison, 743 F.2d 1450, 1457-58 (10th Cir.1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985); Harenberg, 732 F.2d at 1513-14; Carlson v. United States, 187 F.2d 366, 372 (10th Cir.) (no error when trial court admitted exhibits, without instructions, containing more concise compilation of information already admitted into evidence), cert. denied, 341 U.S. 940, 71 S.Ct. 1000, 95 L.Ed. 1367 (1951); United States v. King, 616 F.2d 1034, 1041 (8th Cir.) (summary charts proper when they fairly reflect evidence already introduced and witness" }, { "docid": "20986143", "title": "", "text": "This evidence established a prima facie case, whether or not payments from the fish saw venture are treated as a form of compensation to Orlowski or as a partnership distribution. At the point this evidence was introduced, the burden shifted to Orlowski to prove the existence of the alleged partnership and of alleged partnership expenditures that exceeded the alleged partnership’s profits. Orlowski produced no such evidence. We therefore affirm the conviction on both counts I and II. C. Summary Exhibits Orlowski also claims the district court erred in admitting Government Exhibits 50A through 50J, consisting of summary charts reflecting Orlowski’s total unreported income and tracing the disposition of the checks generating Orlowski’s receipts for the years in suit. Orlowski seriously objects only to the summaries entitled “Computation of Total Income” which categorized Orlowski’s partnership payments as “unreported partnership income”. Summary exhibits are explicitly authorized by Fed.R.Evid. 1006. We have previously held that “[wjhere charts which fairly summarize the evidence are used as an aid in understanding the testimony already introduced and the witness who prepared the charts is subject to cross-examination with all documents used to prepare the summary, the use of charts is proper.” United States v. Nelson, 735 F.2d 1070, 1072 (8th Cir.1984) (quoting United States v. King, 616 F.2d 1034, 1041 (8th Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 829 (1980)). The record reveals that these exhibits were summaries of the various kinds of income mentioned in testimony and documents already admitted into evidence. IRS agent Stephen Gilbert, who prepared these exhibits, was subject to cross-examination on the sources of all the information and the conclusions that the charts contained. Thus, we hold that the trial judge’s use of the summary exhibits and his decision to send the exhibits to the jury was within the trial judge’s sound discretion. United States v. Lewis, 759 F.2d 1316, 1329 n. 6 (8th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 407, 88 L.Ed.2d 357 (1985). D. Jury Instructions Finally, Orlowski claims that the district court erred in instructing the jury regarding tax liability for partnership" }, { "docid": "23048002", "title": "", "text": "the indictment is warranted. United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1391-92 (9th Cir.1983), cert. denied, 465 U.S. 1079, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984). Cook presents no evidence that knowing perjury related to a material matter was presented to the grand jury. United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir.1977), cert, denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). See also, United States v. Samango, 607 F.2d 877, 883 (9th Cir.1979) (dismissal of indictment proper where among other errors prosecutor submitted prejudicial, unnecessary transcripts to the grand jury). Since Cook’s arguments lack any clear basis in fact and law, we reject his claims of impropriety. B. Ineffective Assistance of Counsel Cook argues that his trial counsel should have filed a bill of particulars demanding disclosure of the informant’s identity and of his information. He asserts failure to do so constituted ineffective assistance. This argument is without merit. The demand for disclosure was vigorously pressed by the defense, but was denied by the trial court. There is no showing that counsel’s efforts were not those of a reasonably competent practitioner or that failure to seek a bill of particulars deprived Cook of the opportunity to litigate the issue. He points to no deficient performance by trial counsel which prejudiced his defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). IV. Selective Prosecution Cook contends that he was selected for prosecution solely because he is Black and had been previously tried and acquitted of murdering a Sacramento police officer. He did not raise this issue before the district court. We could view that failure as a waiver under Fed.R.Crim.P. 12(f). United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir.1974). See also United States v. Jarrett, 705 F.2d 198 (7th Cir.1983), cert. denied, 465 U.S. 1004, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984). Even if we address the merits of his claim, it is clear that Cook has not stated the elements of selective prosecution, which are (1)" }, { "docid": "1803501", "title": "", "text": "who prepared charts subject to cross examination), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 829 (1980), cited in Harenberg, 732 F.2d at 1514. VI. Mann also claims that he was impermissibly selected for prosecution based upon his exercise of first amendment rights to speak regarding his views about the tax laws. Fed.R.Crim.P. 12(b) requires that “[d]efenses and objections based on defects in the institution of the prosecution” must be raised prior to trial. Because a selec tive prosecution claim clearly implicates the institution of the prosecution, it must be raised prior to trial. United States v. Jarrett, 705 F.2d 198, 204-05 (7th Cir.1983), cert. denied, 465 U.S. 1004, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984); United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977); United States v. Oaks, 508 F.2d 1403, 1404-05 (9th Cir.1974), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). The trial in this case was concluded on September 10, 1986, and Mann filed motions to dismiss based on selective prosecution on September 23 and 30, 1986. See rec. vol. II, docs. 71 & 81. Therefore, we do not address this contention. VII. Finally, Mann claims that various instances of government misconduct prevented Mann from receiving a fair trial. After considering Mann’s claim, reviewing the transcript, and applying the relevant law, we conclude that the alleged misconduct was either not improper or did not affect the outcome of the trial. See United States v. Martinez-Nava, 838 F.2d 411, 416-17 (10th Cir.1988). VIII. Based on the foregoing, we AFFIRM Mann’s convictions on the four mail fraud counts. Mann’s wire fraud conviction is REVERSED for insufficient evidence, and the trial court shall enter a judgment of acquittal on the wire fraud count. Mann’s convictions on the three counts of willfully failing to file tax returns are REVERSED, and we REMAND for a new trial on the willful failure to file counts. . The tape-recording admitted at trial, rec. supp. vol. IV at 89, consisted in its entirety of the following:" }, { "docid": "9437631", "title": "", "text": "between United States foreign policy and the Israeli government’s efforts to solve problems it believes it has with Black Hebrews already settled in Israel. The trial court directed the government to supply appellant with information demonstrating how many passport frauds were detected since 1975, how many detected frauds were prosecuted and how many frauds detected or prosecuted involved Black Hebrews. The government produced most of the statistical information requested by the trial court, and following three days of testimony on this question, the trial court ultimately determined that appellant had not proved her claim of selective prosecution. In reaching this finding the trial court concluded that no records existed to demonstrate specifically how many Black Hebrews were involved in passport frauds or the disposition of those cases involving Black Hebrews suspected of committing passport fraud. Any conflicts that may have existed in the testimony on the selective prosecution claim were correctly resolved by the trial court in the government’s favor. Appellant also argues that the issue of selective prosecution should have gone to the jury and not have been decided by the trial court. On the contrary, the issue of selective prosecution is one to be determined by the court, Fed.R.Crim.P. 12(b)(1); see United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977), as it relates to an issue of law entirely independent of the ultimate issue of whether the defendant actually committed the crimes for which she was charged. See United States v. Oaks, 508 F.2d 1403, 1404-05 (9th Cir.1974). In this respect, a ruling on selective prosecution is similar to a ruling on whether outrageous government involvement in a criminal enterprise precludes prosecution of those private citizens involved in the crime. See United States v. Wylie, 625 F.2d 1371, 1377-78 (9th Cir.1980), cert. denied sub nom. Perluss v. United States, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981); United States v. Nunez-Rios, 622 F.2d 1093, 1097-98 (2d Cir. 1980) . From the record we see nothing that suggests the trial court was clearly wrong." }, { "docid": "8802702", "title": "", "text": "beyond a reasonable doubt into a wide-ranging inquiry into matters far beyond the scope of legitimate issues in a criminal trial.” Id. at 93. Moreover, whether it bears the name of “perjury trap” or “contrived materiality,” Regan’s claim that the government called him before the grand jury solely to elicit perjured testimony is, like a claim of selective prosecution, ultimately separate from the issue of his factual guilt. The Supreme Court has observed that a “selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.” United States v. Armstrong, — U.S. -,-, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687 (1996). Because it involves a “defect in the institution of the prosecution,” the selective prosecution defense is an issue for the court rather than the jury. See, e.g., United States v. Jones, 52 F.3d 924, 927 (11th Cir.), cert, denied. — U.S. -, 116 S.Ct. 265, 133 L.Ed.2d 187 (1995); United States v. Washington, 705 F.2d 489, 495 (D.C.Cir.1983) (citing Fed. R.Crim.P. 12(b)(1)). Regan’s claim is similarly unrelated to factual innocence of the crime charged. Regan does not contest that he lied before the grand jury. Rather, he contends that his lies were not “material” because the government staged its investigation in order to elicit his lies. As a result, his - claim stems from a constitutional violation in the institution of his prosecution, rather than factual innocence, and was properly resolved by the court. See Fed.R.Crim.P. 12(b)(1). Cf. United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977) (citing Rule 12(b)(1) as basis for resolution by court of selective prosecution claim). In short, we believe that Gaudin does not require us to expand the definition of materiality in the manner Regan argues, and also that to do so would involve juries in an inquiry for which they are ill-suited. For this reason, we agree with the district court’s decision to resolve for itself whether the government’s conduct" }, { "docid": "9437632", "title": "", "text": "and not have been decided by the trial court. On the contrary, the issue of selective prosecution is one to be determined by the court, Fed.R.Crim.P. 12(b)(1); see United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977), as it relates to an issue of law entirely independent of the ultimate issue of whether the defendant actually committed the crimes for which she was charged. See United States v. Oaks, 508 F.2d 1403, 1404-05 (9th Cir.1974). In this respect, a ruling on selective prosecution is similar to a ruling on whether outrageous government involvement in a criminal enterprise precludes prosecution of those private citizens involved in the crime. See United States v. Wylie, 625 F.2d 1371, 1377-78 (9th Cir.1980), cert. denied sub nom. Perluss v. United States, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981); United States v. Nunez-Rios, 622 F.2d 1093, 1097-98 (2d Cir. 1980) . From the record we see nothing that suggests the trial court was clearly wrong. Fed.R.Civ.P. 52(a); see United States v. Wilson, 639 F.2d 500, 503 & n. 2 (9th Cir. 1981) ; see also United States v. Bradshaw, 515 F.2d 360 (D.C.Cir.1975). Indeed, it appears that the court more than adequately protected appellant’s right not to be improperly singled out for prosecution. Accordingly, we affirm the trial court’s ruling on appellant’s selective prosecution claim. D. Scope of Voir Dire Permitted in No. 81-875 During voir dire in No. 81-375 appellant’s counsel requested that prospective jurors be examined for their knowledge and views concerning the Black Hebrews. The district court limited defense counsel to a single question asking whether any prospective jurors had heard of the Black Hebrews. Only one prospective juror answered affirmatively and was excused from the panel for cause. Appellant argues that this isolated and unexplained reference to the Black Hebrews may have confused the jury and aroused suspicions that the appellant was associated with a fringe religious group with peculiar beliefs. Consequently, she argues a wider range of inquiry should have been permitted during voir dire" }, { "docid": "8835547", "title": "", "text": "also [1958] U.S.Code Cong. & Admin. News, pp. 2187, 2192. Thus, while intent need not be proven as an element of the offense, the individual is adequately protected by the guarantee of notice and opportunity to correct nonconforming conduct. United States v. Gorden, supra, 495 F.2d at 310. Ill Erne’s second contention is that the district judge erred in refusing to order an evidentiary hearing on Erne’s motion to dismiss for discriminatory prosecution. As we recently outlined, a defendant’s burden in sustaining an allegation of discriminatory prosecution requires that he first demonstrate that others similarly situated generally have not been prosecuted for conduct similar to that for which he was prosecuted. Secondly, [the defendant] must show that his selection was based on an impermissible ground such as race, religion or his exercise of his first amendment right to free speech. United States v. Scott, 521 F.2d 1188, 1195 (9th Cir. 1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976). Accord, United States v. Oaks, 527 F.2d 937, 940 (9th Cir. 1975), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). See also, United States v. Steele, 461 F.2d 1148 (9th Cir. 1972). In addition, we have held that a defendant is usually entitled to an evidentiary hearing on his claim of discriminatory prosecution “when enough facts are alleged to take the question past the frivolous stage.” United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir. 1974), aff’d after remand, 527 F.2d 937 (1975), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). Applying these principles, we agree with the district judge that Erne had not alleged sufficient facts to justify an evidentiary hearing. Significantly, all of Erne’s allegations are focused upon Revenue Officer Farley. The record is clear, however, that the ultimate decision to prosecute is several steps removed from the revenue officer. During the period here involved, a revenue officer’s recommendation for prosecution under section 7215 was transferred to the Intelligence Division where the case was independently investigated by Special Agents. If the Intelligence Division concluded that prosecution" }, { "docid": "21902762", "title": "", "text": "838 (1980). . 521 F.2d 1188, 1195 (9th Cir. 1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976) (involving alleged failure to file income tax forms). . Mem. op. at 3, J.A. at 114. . See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); United States v. Elliott, 266 F.Supp. 318 (S.D.N.Y.1967). . United States v. Elliott, 266 F.Supp. 318, 324 (S.D.N.Y.1967). . P. 946 infra. . 530 F.Supp. 241 (S.D.N.Y.1981), aff’d, 668 F.2d 159 (2d Cir. 1982). . Attorney Gen. v. INAC, 668 F.2d 159 at 160 (2d Cir. 1982). . The alleged three-link IRA-INAC-The Irish People relationship is discussed at note 2 supra. . 501 F.2d 1207 (2d Cir. 1974). . Mem. op. at 17-20. . Id. at 20 (citing Berrios, 501 F.2d at 1211-12) (emphasis added). . They were cited and discussed at pp. 3-4 of the memorandum opinion, J.A. at 114-15. They are: United States v. Peskin, 527 F.2d 71, 85-86 (7th Cir. 1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976); United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir. 1974); United States v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir. 1974); United States v. Berrigan, 482 F.2d 171, 177 (3d Cir. 1973); United States v. Falk, 479 F.2d 616, 620-21 (7th Cir. 1973) (en banc). . See Peskin, 527 F.2d at 85-86; Oaks, 508 F.2d at 1404, and later proceeding at 527 F.2d 937, 940 (9th Cir. 1975), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976); Berrios, 501 F.2d at 1211; Berrigan, 482 F.2d at 173, 179; Falk, 479 F.2d at 619-23. Indeed, it was Berrios on which Judge Haight relied in his own application of the two-pronged selective prosecution test in Attorney Gen. v. INAC, 530 F.Supp. 241 at 254 (S.D.N.Y.1981), aff’d, 668 F.2d 159 (2d Cir. 1982). See preceding paragraph in text and note 11 supra. It should also be noted that Peskin and Berrigan held there was no selective prosecution defense shown because of a failure to show improper motivation, so the" }, { "docid": "22915493", "title": "", "text": "a defendant be afforded his counsel’s assistance at all critical periods provided a rationale for reversal completely apart from privacy concerns. . The SWP ultimately prevailed at trial on its claim that the government was liable under the Federal Tort Claims Act for invading the organization's privacy by the use of undercover informers. See Socialist Workers Party v. Attorney General of US., 642 F.Supp. 1357, 1422-23 (S.D.N.Y.1986). . The defense of selective prosecution is waived unless properly raised before trial. United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir.1974); United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.1977), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977). Nonetheless, we do not address the applicability of these cases because of the government’s failure to pursue this issue on appeal. . See, e.g., Lee. In the Lee decision, the court rejected defendant’s claim that the Air Force’s differing treatment of civilian and military traffic law offenders constituted selective prosecution. The Air Force referred civilians to the U.S. Attorney for prosecution in federal court, while it retained jurisdiction over military personnel for prosecution in military courts. The court found that military personnel and civilians were not similarly situated because of the military's distinct needs and policies, and it therefore rejected defendant’s selective prosecution claim. 786 F.2d at 957-58. . The district judge below apparently employed this reasoning in rejecting appellants’ selective prosecution claim: \"I suppose at some time, arguably, a case comes along that is sui generis, it simply doesn't have any counterpart.” As indicated infra, we find that organized smuggling rings provide the appropriate control group; thus, we do not depend on the ultimate analysis employed in Irish People. Instead, Irish People is relevant to show the significance of locating a control group. . In the case of United States v. Steele, 461 F.2d 1148 (9th Cir.1972), the court found that defendant successfully had identified similarly situated persons. Defendant identified six other persons who also \"completely refused on principle to complete census forms,” but who were not the subjects of prosecution. Id. at 1151. Unlike defendant, however," }, { "docid": "23048003", "title": "", "text": "is no showing that counsel’s efforts were not those of a reasonably competent practitioner or that failure to seek a bill of particulars deprived Cook of the opportunity to litigate the issue. He points to no deficient performance by trial counsel which prejudiced his defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). IV. Selective Prosecution Cook contends that he was selected for prosecution solely because he is Black and had been previously tried and acquitted of murdering a Sacramento police officer. He did not raise this issue before the district court. We could view that failure as a waiver under Fed.R.Crim.P. 12(f). United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir.1974). See also United States v. Jarrett, 705 F.2d 198 (7th Cir.1983), cert. denied, 465 U.S. 1004, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984). Even if we address the merits of his claim, it is clear that Cook has not stated the elements of selective prosecution, which are (1) that others are generally not prosecuted for the same conduct, and (2) that the decision to prosecute the defendant was based on such impermissible grounds as race, religion or the exercise of constitutional rights. United States v. McWilliams, 730 F.2d 1218, 1221 (9th Cir. 1984). Cook offered no proof that the government does not prosecute other individuals, whom it suspects of criminal conduct such as that involved in this case, or that the decision to prosecute him was based upon race or other impermissible grounds. CONCLUSION We reverse the convictions of appellants on Counts I, II and III of the indictment. We affirm appellants’ convictions on Count IV of the indictment. The judgments and sentences on Counts I, II and III are ordered vacated and set aside. Because appellants are in custody and, with respect to the single conviction which today we affirm, may be eligible for discharge or release pursuant to the provisions of 18 U.S.C. §§ 4163 or 4205(a), we order that the mandate herein shall issue immediately upon the filing of this" }, { "docid": "20986144", "title": "", "text": "the charts is subject to cross-examination with all documents used to prepare the summary, the use of charts is proper.” United States v. Nelson, 735 F.2d 1070, 1072 (8th Cir.1984) (quoting United States v. King, 616 F.2d 1034, 1041 (8th Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 829 (1980)). The record reveals that these exhibits were summaries of the various kinds of income mentioned in testimony and documents already admitted into evidence. IRS agent Stephen Gilbert, who prepared these exhibits, was subject to cross-examination on the sources of all the information and the conclusions that the charts contained. Thus, we hold that the trial judge’s use of the summary exhibits and his decision to send the exhibits to the jury was within the trial judge’s sound discretion. United States v. Lewis, 759 F.2d 1316, 1329 n. 6 (8th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 407, 88 L.Ed.2d 357 (1985). D. Jury Instructions Finally, Orlowski claims that the district court erred in instructing the jury regarding tax liability for partnership income because the Government failed to prove that the partnership payments received by Orlowski constituted income. For reasons already stated in part II.B., we reject this contention. III. CONCLUSION The judgment of the district court is affirmed as to all issues raised on appeal. . That section, as applicable, reads: Any person who— (1) Declaration under penalties of perjury Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter; * * * ****** shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 * * *, or imprisoned not more than 3 years, or both, together with the costs of prosecution. . The Honorable George F. Gunn, Jr., United States District Judge for the Eastern District of Missouri. . The Government also produced evidence that Orlowski received money from a variety of sources other" }, { "docid": "1803497", "title": "", "text": "should be admitted so as to minimize jury confusion.” Hairston, 819 F.2d at 973. Moreover, a reading of the record reveals that the trial court displayed exemplary patience and evenhandedness during Mann’s often redundant testimony over the course of two days. Mann was permitted to testify at length regarding his views of the law, referring specifically to the authority he relied upon, and the trial court’s management of Mann’s presentation was well within its discretion. Id.; Harrold, 796 F.2d at 1285. V. Mann next argues that the trial court erred by allowing the testimony of government witness Max Springer. Springer, the government’s final witness, testified as an expert in the field of income tax calculation and accounting. Rec. supp. vol. VI at 451. His testimony consisted of a summary of previously admitted evidence, compiled for the purpose of determining Mann’s taxable income for the years 1979-81. Mann claims that the evidence in this case was not complex enough to warrant the use of a summary witness and that the trial court failed to adequately caution the jury regarding the nature of summary testimony. The first contention is without merit, as “[w]e have approved the use of summaries in tax prosecutions on other occasions,” including summary testimony similar to that in the instant case. United States v. Harenberg, 732 F.2d 1507, 1513 (10th Cir.1984) (involving summary testimony of IRS agent applying previously admitted evidence to different valid methods of preparing return). Further, the testimony itself and instructions to the jury convince us that no error was committed. We have said that “[summaries] may properly be put before a jury with limiting instructions.” United States v. Kaatz, 705 F.2d 1237, 1245 (10th Cir.1983). For that proposition in Kaatz, we cited United States v. Scales, 594 F.2d 558 (6th Cir.), cert. denied, 441 U.S. 946, 99 S.Ct. 2168, 60 L.Ed.2d 1049 (1979), which required cautionary instructions to counteract the possibility that “[t]he jury might rely upon the alleged facts in the summary as if these facts had already been proved, or as a substitute for assessing the credibility of witnesses.” Id. at 564." }, { "docid": "22815927", "title": "", "text": "evidence tending to show misconduct through extensive dealings in cash is properly admitted into evidence, see United States v. White, 417 F.2d 89, 92 (2d Cir.1969), cert. denied, 397 U.S. 912, 90 S.Ct. 910, 25 L.Ed.2d 92 (1970). It is, therefore, properly chargeable. And, in any event, the “dealing in cash” language was immediately followed by a balancing charge that “openness in conduct” could give rise to the inference that the taxpayer believed he had done nothing wrong and “had nothing to hide.” IV MISCELLANEOUS ISSUES A. Selective Prosecution Both appellants contend that the prosecution mounted against them was impermissibly motivated by hostility toward their religion and that the district court erred in denying their request for discovery and a hearing on the issue of selective prosecution. In this Circuit, a defendant who advances a claim of selective prosecution must do so in pretrial proceedings, see United States v. Taylor 562 F.2d 1345, 1356 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977). The person asserting such a claim bears the burden of establishing prima facie both: (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). No evidentiary hearing or discovery is mandated unless the district court, in its discretion, see id. at 1212, finds that both prongs of the test have been met. See United States v. Ness, 652 F.2d 890, 892 (9th Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 976, 71 L.Ed.2d 113 (1981); United States v. Catlett, 584 F.2d 864, 866 (8th Cir.1978); Berrios, 501 F.2d at 1211. We cannot say on this record that the-district court abused its discretion in holding that appellants failed to demonstrate the necessary factual" } ]

[ { "docid": "10356462", "title": "", "text": "66 L.Ed.2d 39 (1980). The decision whether to dismiss any or all jurors lies in the sound discretion of the trial judge. On review, we are charged with determining whether manifest injustice resulted from the judge’s refusal to dismiss all of the jurors who heard the improper comments noted above. Irvin v. Dowd, 366 U.S. 717, 722-24, 81 S.Ct. 1639, 1642-1643, 6 L.Ed.2d 751 (1961). The trial judge in each instance questioned the potential jurors regarding the sensitive areas surrounding the trial, including the facts that drugs were involved and that one or both of the defendants might choose to not testify at trial. Except for the two dismissed panel members, no juror displayed prejudice. Moreover, neither defendant pressed for dismissal of any panel member other than those that eventually were dismissed. We believe that the defendants were tried by an impartial jury. One final, unusual occurrence deserves attention because Defendant Nisbet argues that it prejudiced the jury against him. During the second day of trial while Nisbet was being escorted to the courtroom, he allegedly encountered a juror while Nisbet was standing outside of an elevator. Nisbet testified that the elevator doors opened, the juror in the elevator saw him, then the doors closed. At the time, Nisbet was shackled to Brett Kimberlin, a defendant in an unrelated case who had received tremendous local publicity. The encounter could not have lasted, more than three or four seconds. Nisbet claimed prejudicial effect and the judge held a hearing outside of the jury’s presence to determine any damage. He found none, and refused to allow Nisbet to question the juror, intending instead to rely on a general instruction to disregard such incidents. The trial judge found no evidence of existing or potential prejudice. Moreover, the judge decided that questioning the juror individually would only exacerbate an otherwise harmless event. The general instruction was never given, in part because Nisbet’s lawyer himself counselled against it. The Eighth Circuit in several cases has established that under the circumstances presented here, the defendant bears the burden of showing affirmatively that he was prejudiced by" } ]

[ { "docid": "4412065", "title": "", "text": "had formed an opinion as to guilt, or that the information would affect his ability to judge petitioner solely on the basis of the evidence presented at trial.” 500 U.S. at 428, 111 S.Ct. at 1907. The Mu’Min Court found no reason to doubt the jurors’ responses because pretrial publicity, although extensive, had not inflamed the community against the defendant. Id. at 429-30, 111 S.Ct. at 1907-08. We reach the same conclusion here. Put simply, this was not a case where jurors’ claims of impartiality rang hollow because “so many, so many times, admitted prejudice.” Irvin, 366 U.S. at 728, 81 S.Ct. at 1645. In these circumstances, our decision in Liddy indicates that the method of questioning employed by the trial judge here is within the limits of the discretion this circuit accords district courts in the conduct of voir dire. In reviewing the conviction of G. Gordon Liddy on charges relating to the burglary and wiretapping of the offices of the Democratic National Committee, the Liddy court considered the propriety of a voir dire involving “general questions addressed to the entire array, followed by individual questioning of those who responded affirmatively to any of the initial inquiries, and thus raised the possibility they might have formed an opinion on the case.” Liddy, 509 F.2d at 436. This voir dire occurred in an environment in which “virtually all of the veniremen had some knowledge of the case,” but group questioning revealed that only “eleven of the then 117 prospective jurors acknowledged having formed an opinion regarding guilt or innocence.” Id. at 436-37 & n. 17. Further, subsequent individual questioning of eight prospective jurors professing some knowledge of pretrial publicity demonstrated that “most knew little about the ease.” Id. at 437. We distinguished these circumstances from cases where venires were tainted by “pervasive, inflammatory publicity,” and held that, “[although the trial judge recognized that the Watergate matter had been publicized extensively, he did not abuse his discretion in declining the defendants’ request that all the veniremen who had heard anything about the case be examined individually.” Id. at 436 (footnote omitted);" }, { "docid": "10850985", "title": "", "text": "a verdict based solely on the evidence presented in court. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); United States v. Apodaca, 666 F.2d 89 (5th Cir.), cert. denied, 459 U.S. 823, 103 S.Ct. 53, 74 L.Ed.2d 58 (1982). Appellants have not established a violation of this right. A trial court has broad discretion in conducting a voir dire and assessing any prejudice held by a potential juror. Apodaca, 666 F.2d at 94. The district court did not abuse its discretion by denying appellants’ motion to strike military base employees and their families for cause. Employment by the United States, without more, does not constitute sufficient grounds for a challenge for cause. Appellants seem to be suggesting that, in this case, more than mere employment by the Government is implicated by the disdain and hostility with which military personnel view defense contractors. However, any bias or prejudice arising from this attitude (if one did, in fact, exist) was adequately explored by the district court. During voir dire, the members of the venire were closely questioned regarding any ties to Kelly. Only five veniremen were actually employed by Kelly, and none of these worked in the contracting field. Three of the five were excused. Three members of the panel were retired from Kelly, and one from Lackland Air Force Base. Of the four veniremen with family members employed by Kelly, three were excused. Finally, one venireman’s wife was retired from Fort Sam. All of the veniremen who were not excused indicated during individual questioning that they were able to be fair and impartial. Following the completion of individual questioning, the court again inquired whether anyone with relatives connected to military establishments would be influenced by the relationship. When the court’s interrogation suggested that a juror held a bias, the juror was excused from service. No abuse of the district court’s discretion has been indicated. The court’s examination was both adequate and sufficiently thorough to reveal any latent prejudice. In a more specific line of attack, appellants contend that the court’s refusal to excuse juror Augustus Rojas" }, { "docid": "14269834", "title": "", "text": "the potential jurors. The defendants urge this Court to hold that the trial court in the present case failed to conduct a searching voir dire on this issue, and that the Court failed to strike for cause jurors who suggested in their responses to the Court’s questions that they might not be impartial. We do not agree with the defendants’ contentions. The standard for the exclusion of a venireman on the basis of his inability to consider a death-penalty verdict properly was articulated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The Supreme Court stated “that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Id. at 522, 88 S.Ct. 1770. In its opinion, the Court stated that this standard did not change the ability of a court to excuse a juror who states that he would “automatically vote against the imposition of capital punishment without regard to any evidence” presented to the Court or “that [his] attitude toward the death penalty would prevent [him] from making an impartial decision as to the defendant’s guilt.” Id. at 522 n. 21, 88 S.Ct. 1770. In a later case the Court noted that “a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Even a juror who has stated that he does not believe in the death penalty might be able to sit as a juror if he can follow the trial judge’s instructions and “consider fairly the imposition of the death sentence in a particular case.” Id. at 44-45, 100 S.Ct. 2521 (citing Boulden v. Holman, 394 U.S. 478, 483-84, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969)). Moreover, bias" }, { "docid": "18447359", "title": "", "text": "a fair and impartial trial to the Commonwealth and to the accused according to the law and the evidence which will be presented to you? The record reflects that there was no response to this series of questions. The Court then gave counsel another opportunity to examine the panel. Again, in relevant part to petitioner’s initial claim, his attorney asked if anyone had read about the case in the Free Lance Star. Five members of the second panel indicated that they had. Next, counsel asked if they had heard of it on the radio, to which there was no response. Thereafter, petitioner’s counsel indicated he had no further questions along this line. The transcript indicates that the court then asked again if anyone had formed an opinion as to the accused’s guilt or innocence. The two veniremen, Mr. Hall and Mr. Labbe, who had previously indicated that they had, again responded in the affirmative. They were excused from jury service by the court. Focusing at this juncture solely upon petitioner’s allegation of prejudicial pretrial publicity, the Court finds that the record is devoid of any evidence to indicate that the voir dire examination was inadequate to safeguard petitioner’s rights in this regard. Accordingly, the Court is satisfied that the trial court’s refusal of the motion for a change of venue was proper and did not violate petitioner’s constitutional rights. JURY SELECTION The petitioner also alleges, however, that he was denied a fair and impartial trial by virtue of the trial court’s denial of his challenges for cause as to several prospective jurors. He contends that since these veniremen admitted to being social or business acquaintances of the father of the prosecutrix for various periods of time, the trial court’s refusal to strike them based upon their passive assurance that they could try the case without prejudice toward either the Commonwealth or the petitioner was improper. The transcript of the voir dire examination indicates that petitioner’s counsel, in addition to inquiring with regard to the venire’s exposure to pre-trial publicity, also questioned the panel as to whether they had young children." }, { "docid": "16882604", "title": "", "text": "the jurors indicated that they could not impartially decide the case consistent with the judge’s instructions. The defendants contend that the court erred in denying their motions for individual voir dire or dismissal of the panel. We, however, find no abuse of discretion. “The purpose of voir dire is to ascertain whether potential jurors can render a verdict solely on the basis of evidence presented and the charge of the trial court.” Wilcox v. Ford, 813 F.2d 1140 (11th Cir.), cert. denied, 484 U.S. 925, 108 S.Ct. 287, 98 L.Ed.2d 247 (1987). A district judge has wide latitude in determining which questions will be asked during voir dire. Id.; United States v. Nash, 910 F.2d 749 (11th Cir.1990). The trial court also has broad discretion about when to allow individual voir dire of the jurors. See Wilcox, 813 F.2d at 1150. This court will review such decisions for abuse of discretion and reverse only if the questioning as a whole did not comply with “the essential demands of fairness” and did not give “reasonable assurance to parties that any prejudice of potential jurors would be discovered.” Nash, 910 F.2d at 753. The district court also has discretion regarding motions to strike the panel. United States v. Khoury, 901 F.2d 948, 955 (11th Cir.1990). To demonstrate error in the denial of a motion to strike the panel, the defendant must overcome the presumption of juror impartiality. Id. The defendants attempt to distinguish this case from Khoury and United States v. Tegzes, 715 F.2d 505 (11th Cir.1983). In both cases, a juror made a statement that the defendants alleged was so likely to cause prejudice that dismissal of the panel was necessary. The defendants in Tegzes also sought individual voir dire of the panel members. We upheld the Khoury and Tegzes courts’ refusals to strike the panel or to question the jurors individually. In both cases we noted that the remark by the juror “did not constitute an opinion concerning the guilt or innocence of the defendants, nor did it relate to knowledge about the facts, parties, or witness involved.” Khoury, 901" }, { "docid": "2499034", "title": "", "text": "reservation were, at the request of the prosecutor, immediately excused for cause without further inquiry. Thirty-four of seventy-five prospective jurors were disqualifed on this broad ground. None of these thirty-four was asked whether his scruples against capital punishment would interfere in any way in the determination of petitioner’s guilt or innocence. Thus, 45.33% of the cross-sectional panel was eliminated from service on the petit jury because of a conscientious scruple toward- capital punishment without inquiry as to what effect, if any, their scruples would have on their ability to decide the issue of petitioner’s guilt or innocence. Moreover, four veniremen were peremptorily challenged by the prosecution after preliminary questioning established that they were less than firm believers in capital punishment. Including these four, thirty-eight out of seventy-five veniremen (50.66% of the total) were thus excluded from petit jury service for these reasons. In sharp contrast to the 45.33% of excluded jurors, a juror who admitted that he had “more or' less, a fixed opinion” about the case as a result of reading about it in the newspaper was permitted to serve after the trial judge questioned him and elicited the further answers that the juror could “erase” the opinion-from his mind, and that he could “disabuse” his mind of the opinion, and decide the case solely on the evidence adduced in court, applying thereto the court’s instructions, so as to give the state and petitioner a fair trial. The challenge of defense counsel for cause was denied. Thirty-one jurors were accepted by the prosecutor. Only thirteen were actually empaneled, but each of the thirty-one professed a belief in capital punishment. Indeed, one of the thirteen stated that he believed “in the doctrine of an eye for an eye,” and that he believed it would be his duty to sentence a defendant found guilty of murder to capital punishment. Thus, while no person known to entertain even an unexamined scruple regarding the death penalty was permitted to qualify, a juror known to regard a sentence of death as his “duty” was permitted to serve. In permitting the veniremen in petitioner’s case" }, { "docid": "14269824", "title": "", "text": "by the parties on the basis of responses to questions contained in the questionnaire. After these strikes were made, and the Court had either granted or denied such strikes, the Court divided the remaining pool into three equal groups. The Court advised the parties that each group would be brought into the courthouse for general group voir dire, after which the Court would conduct individual death qualification outside of the presence of the other potential jurors. The parties were then asked to submit any supplemental questions that they wished the Court to consider. After the Court had received such requests, it advised the parties that it intended to conduct the entire voir dire and that it “intended to adopt many of the proposed changes in [the Court’s] general voir dire as suggested by [the parties’ attorneys].” Appellee’s Addendum C. The Court conducted voir dire on three consecutive days in the manner described, conducting general voir dire, then individual death qualification, until 77 persons remained. A. Racial Bias The defendants contend that this process was insufficient. Specifically, the defendants suggest that the Court failed to examine thoroughly the racial biases of particular veniremen. Moreover, they argue that the Court erred in failing to strike for cause at least one juror who they believe showed evidence of racial bias. We disagree. A court is constitutionally required to inquire into potential jurors’ racial prejudices if “ethnic or racial issues are inextricably intertwined with conduct of the trial, or if the circumstances in the case suggest a significant likelihood that racial prejudice might infect the defendant’s trial.” United States v. Borders, 270 F.3d 1180, 1182 (8th Cir.2001); see Rosales-Lopez, 451 U.S. at 190, 101 S.Ct. 1629. If “substantial indications” of racial prejudice exist in a particular case and a trial court denies a defendant’s request to examine a venireman’s ability to be impartial, this inaction may be characterized as “an unconstitutional abuse of discretion.” Borders, 270 F.3d at 1183 (internal citation omitted). Even in cases when such implications do not exist, and further inquiries are not constitutionally required, the best practice is to allow" }, { "docid": "5362477", "title": "", "text": "the evidence ... even though the jury concluded that the offense had not been proven beyond a reasonable doubt.”). The majority of circuits now adhere to the principle that criminal conduct for which a person has been acquitted may nevertheless form the basis for a sentence enhancement. See United States v. Kelly, 1 F.3d 1137, 1139 n. 1 (10th Cir.1993) (“All circuits except the Ninth permit the sentencing court to consider the facts underlying an acquittal in upwardly departing or enhancing a sentence.”) (collecting cases). This reasoning applies with equal force to Lacey’s case — that is, even though a jury did not find Klobuchar and Harper guilty beyond a reasonable doubt, the district court was not foreclosed from finding by a preponderance of the evidence that they were “criminally responsible” and thus participants in Lacey’s drug conspiracy. Because the district court’s findings on this point were not clearly erroneous, we do not disturb its imposition of a four-level enhancement for Lacey’s role in the offense. III. Refusal to Grant a Mistrial Based on Jury Taint Lacey argues that the district court erred in failing to grant his motion for a mistrial after a potential juror made certain allegedly prejudicial remarks in the presence of the other venirepersons. “A ruling on a motion for mistrial is within the sound discretion of the district court and will not be disturbed absent a clear abuse of that discretion.” United States v. Wacker, 72 F.3d 1453, 1466 (10th Cir.1995) (citing United States v. Berryhill, 880 F.2d 275, 278 (10th Cir.1989), cert. denied, 493 U.S. 1049, 110 S.Ct. 853, 107 L.Ed.2d 846 (1990)). In response to questioning from the court during voir dire, one potential juror indicated that his opinion of the defendant’s guilt would be affected if the defendant did not take the stand and proclaim his innocence. When asked if this belief would affect his ability to render an impartial verdict, the juror replied that it would. The district court promptly dismissed the juror for cause, yet two other jurors questioned immediately thereafter expressed similar opinions regarding the defendant’s decision not to" }, { "docid": "23439746", "title": "", "text": "the record, it would have supported a challenge for cause.”); id. at 375, 111 S.Ct. 1859 (Black-mun, J., dissenting) (concurring in that part of Justice Stevens’ dissent). Accordingly, in consideration of Hernandez, we hold that the for-cause striking of prospective jurors based on their perceived inability to accept an interpreter as the final arbiter of what was said or written does not violate the Equal Protection Clause of the Fourteenth Amendment. The defendant also argues that the striking of the prospective jurors violated his rights under the Sixth Amendment. In selecting a jury, “[t]he trial judge is in the best position to make judgments about the impartiality and credibility of potential jurors based on the judge’s own evaluations of ... responses to questions.” United States v. Barber, 80 F.3d 964, 967 (4th Cir.1996) (internal quotation marks omitted). Accordingly, “[a]s a matter of law, the trial court is to exclude veniremen who cannot be impartial.” United States v. Turner, 389 F.3d 111, 117 (4th Cir.2004). “We review challenges to the qualifications of jurors under an abuse of discretion standard.” Id. at 115. “[A] district judge retains a very broad discretion in deciding whether to excuse a juror for cause and his decision will not be overturned except for manifest abuse of that discretion.” Id. (internal quotation marks omitted). The Sixth Amendment entitles a defendant to a “trial[] by an impartial jury.” U.S. Const, amend. VI. “[A] juror is impartial only if he can lay aside his opinion and render a verdict based on the evidence presented in court .... ” Patton v. Yount, 467 U.S. 1025, 1037 n. 12, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (emphasis added); see also Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (“Due Process means a jury capable and willing to decide the case solely on the evidence before it----”). It is integral to the promise of a fair trial that all jurors in a particular case base their decision on the same evidence. See Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)" }, { "docid": "22810144", "title": "", "text": "Abreu’s arguments related to: the district court’s refusal to strike a juror for cause; whether the conduct involved violated the bank fraud statute; the jury instructions related to the bank fraud count; Confrontation Clause and evidentiary rulings; and the limitations imposed on cross-examination. He also appeals his sentence as unreasonable. II. Common Challenges on Appeal A. Refusal to Strike a Juror for Cause The Appellants each challenge the district court’s refusal to strike a prospective juror for cause. On the fourth day of jury selection, Jimenez’s attorney brought to the district court’s attention an “incident” that had occurred earlier that morning in the women’s restroom, in which Juror 14 exhibited what Jimenez’s attorney believed to be an aggressive attitude toward her about who was next in line. During the subsequent voir dire of Juror 14, she was asked about inconsistent answers that she had given on her juror questionnaire regarding the presumption of innocence. Upon further questioning by the district court, the court was satisfied that Juror 14 would correctly hold the Government to its burden of proof and consider the defendants innocent until that burden was met. The court refused the defendants’ request to strike Juror 14 for cause. The defendants ultimately used one of their peremptory strikes to dismiss Juror 14 and used all of their peremptory strikes on remaining jurors. We review the district court’s decision concerning whether to seat a juror for an abuse of discretion. See United States v. Lopez, 271 F.3d 472, 489 (3d Cir.2001), cert. denied, 535 U.S. 908, 122 S.Ct. 1211, 152 L.Ed.2d 148 (2002). “Determining whether a prospective juror can render a fair verdict lies peculiarly within a trial judge’s province.... Therefore, the trial court’s resolution of such questions is entitled, even on direct appeal, to special deference.” United States v. Murray, 103 F.3d 310, 323 (3d Cir.1997) (internal marks and citations omitted). The district court questioned the juror extensively about her understanding of the burden of proof and the presumption of innocence and ultimately allowed the defense attorneys to conduct voir dire concerning the bathroom incident, despite the district court’s" }, { "docid": "23082875", "title": "", "text": "was tangentially related to the central issue in that it established that Gaitan-Acevedo had accumulated wealth, but the existence of a “ranchito” was not a material dispute at trial. Evidence concerning the town of Ranchito in Mexico at most would have called into question the meaning of a single entry in the defendant’s notebook — a matter that clearly was not material to the jury’s determination of his guilt on the drug charges. We find no reversible error on this ground. III. In addition to the challenges raised individually by each defendant, several of the defendants raise common issues on appeal. These challenges are addressed below. A. Juror Misconduct Defendants Gaitan-Acevedo, Oropeza-Areehiga and Free challenge the district court’s refusal to grant a mistrial based upon juror misconduct. They identify two alleged instances of misconduct. The first incident involved the juror foreperson, a high school teacher, who disclosed that he had terminated a scheduled trip with his students because he apprehended three of the students using marijuana. The defendants moved for the juror’s removal. In response, the district court questioned the juror about his ability to render a fair verdict, but ultimately denied the motion based on its determination that the juror could render such a verdict. The second incident occurred two days later. The government advised the court that they had overheard the jurors discussing the case and commenting on the credibility of witnesses and guilt of defendants. The district court conducted a voir dire of the 16 jurors, discharged the juror that made disparaging comments, and gave the remaining jurors a series of cautionary instructions. It is well established that “[t]he trial judge is in the best position to determine the nature of the alleged jury misconduct,” and the “appropriate remedies for any demonstrated misconduct.” United States v. Copeland, 51 F.3d 611, 613 (6th Cir.1995), cert. denied, 516 U.S. 874, 116 S.Ct. 199, 133 L.Ed.2d 133 (1995). The lower court’s decision will be upheld absent an abuse of discretion. Id. Contrary to Defendants’ contention, the district court’s rulings were not erroneous. In both instances, the court investigated the reported" }, { "docid": "14269833", "title": "", "text": "have been struck for cause. Mr. Whisler indicated in his questionnaire that he believed that African Americans were more violent than other races. However, he did not “think” that the fact that the defendants were from Colombia would “impact his ability to be impartial.” Tr. 162. When the Court further inquired whether “the fact that the defendants have African ... heritage would in any way weigh on your decision at that part of the trial or any other,” he responded, “[n]o, sir.” Tr. 164. We will uphold a trial court’s decision whether to strike a juror for cause unless the defendants can illustrate actual prejudice. See United States v. Mills, 987 F.2d 1811, 1314 (8th Cir.1993). In the present case, not only did Mr. Whisler state that he could be impartial, he did not serve on the jury. Because the necessity of using a peremptory strike does not establish actual prejudice, we find no abuse of discretion by the trial court. B. Individual Death Qualification We now turn our attention to the death qualification of the potential jurors. The defendants urge this Court to hold that the trial court in the present case failed to conduct a searching voir dire on this issue, and that the Court failed to strike for cause jurors who suggested in their responses to the Court’s questions that they might not be impartial. We do not agree with the defendants’ contentions. The standard for the exclusion of a venireman on the basis of his inability to consider a death-penalty verdict properly was articulated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The Supreme Court stated “that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Id. at 522, 88 S.Ct. 1770. In its opinion, the Court stated that this standard did not change the ability of a court to excuse a juror who states that he" }, { "docid": "3284015", "title": "", "text": "WIDENER, Circuit Judge: Appellant Edward Rucker was convicted of voluntary manslaughter in the stabbing death of a fellow inmate at Virginia’s Lorton Reformatory, in violation of 18 U.S.C. § 1112. The dispositive issue in his appeal is whether the trial judge committed reversible error in refusing to question individually on voir dire two prospective jurors whose answers to jury qualification questionnaires left open to question their physical or mental capacities to render effective jury service. Rucker used two of his ten peremptory challenges, all of which were ultimately exercised, to strike the questionable veniremen from the panel, and now claims that the trial judge’s failure to make specific inquiry impaired his ability to make intelligent use of those challenges. We agree, and hold that the judgment of conviction must be vacated and the case remanded for a new trial. Of the veniremen who had filled out the questionnaires, two had failed to answer fully Questions 18 and 19. Question 18 inquired whether or not a venireman suffered from any physical or mental infirmity that would impair his ability to serve as a juror. One venireman answered affirmatively, but failed to provide an explanation as required by Question 19. Another failed entirely to answer Question 18. Counsel for the appellant brought these matters to the attention of the court, and requested that, on voir dire, the two veniremen in question be individually asked to explain their answers or lack thereof. The court denied the request, and denied a challenge for cause to the one juror who had indicated that he in fact had such a disability. Instead, the court inquired generally of the panel as a whole whether any venireman suffered from any physical or mental infirmity that would impair his ability to sit as a juror. The oral inquiry was answered with silence. We think the trial judge committed error in failing to ascertain why the questions pertaining to physical or mental impairment had not been fully answered, or had been answered in the affirmative, once that fact had been called to the court’s attention by defendant’s counsel. Physical or" }, { "docid": "23345399", "title": "", "text": "that in Rideau. The publicity cited by appellants here was primarily descriptive of the indictment, trials and related proceedings. It does not cause us to conclude “that the population of [Memphis] was so aroused against appellants and so unlikely to be able objectively to judge their guilt or innocence on the basis of evidence presented at trial that their due process rights were violated by the District Court’s refusal to grant ... a change of venue prior to attempting selection of a jury.” Halde-man, supra, 181 U.S.App.D.C. at 286, 559 F.2d at 62 (footnote omitted). The merit of a change of venue motion is most likely to be revealed at voir dire of the potential jurors. Through proper questioning the court can determine the extent of the veniremen’s exposure to the publicity and the effect it has had upon them. Exposure to publicity alone does not presumptively deprive the defendant of his right to fair and impartial jurors. Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). See also Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 551-56, 565, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Rather, the test is whether any potential juror who has been exposed to publicity “can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639,1643, 6 L.Ed.2d 751 (1961). See also Murphy, supra, 421 U.S. at 800, 95 S.Ct. 2031; United States v. Gay, 522 F.2d 429, 432 (6th Cir. 1975). Here, all of the veniremen who had read, heard or seen anything about the case said this exposure would not affect their decision and that they had not formed any opinion on the matter. Based upon this development, the district court properly denied the change of venue motion. Freeman Monger has also argued that the publicity during the third trial was sufficient to justify sequestering the jury, and that it was error not to do so. The decision on sequestering a jury is entrusted to the sound discretion of the trial" }, { "docid": "23054612", "title": "", "text": "alleged inconsistency in the Government’s conspiracy theory had no impact on the likelihood of Dickerson being convicted. III. Juror Challenge Dickerson next challenges the District Court’s refusal to strike a juror for cause. Dickerson claims that this juror, Gabriel Fortun (“Fortun”), evinced such bias as to warrant further questioning by the District Court Judge before allowing the juror to serve. The Government responds that the District Court’s questioning of Fortun was sufficient to demonstrate the juror’s ability to render a fair decision based upon the evidence presented at trial. The decision to strike a prospective juror for cause “upon a suggestion of partiality is within the sound discretion of the trial judge.” E.g., United States v. Rhodes, 177 F.3d 963, 965 (11th Cir.1999) (citation omitted). The trial judge evaluating the fitness of prospective jurors must consider whether the jurors “had such fixed opinions that they could not judge impartially the guilt of the defendant.” Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984) (citing Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961)). In particular, when reviewing juror impartiality, this court has focused on whether (1) the juror may be affected by matters not in evidence, and (2) the juror may presume guilt rather than innocence. See Depree v. Thomas, 946 F.2d 784, 790 n. 11 (11th Cir.1991) (discussing United States v. Martin, 749 F.2d 1514 (11th Cir.1985)). Thus, we review a district court’s denial of a request that a juror be stricken from a jury panel for cause to determine whether there is “fair support” in the record for district court’s conclusion that the juror would be impartial. See, e.g., Bailey v. Bd. of County Comm’rs, 956 F.2d 1112, 1128-29 (11th Cir.), cert. denied sub nom. Hayes v. Bailey, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 58 (1992). The record below establishes that the District Court ensured that the challenged juror would be able to evaluate the evidence objectively and render a fair decision. The jurors in Martin and Bailey made statements that clearly reflected an" }, { "docid": "10917413", "title": "", "text": "Second, the FDPA requires aggravating factors to be proved beyond a reasonable doubt. 18 U.S.C. § 3593(c). Because Cunningham is not on point and does not undermine Bourgeois, which remains the controlling authority in this circuit, we reaffirm the constitutionality of the FDPA. C. Jackson argues that the court improperly excluded for cause two veniremen, Janice Epps and Barbara Lee. According to Jackson, they were erroneously excluded based on objections to the death penalty that did not affect their ability to serve as jurors. Under Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Nonetheless, potential jurors may be excused where they have indicated either “(1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.” Id. at 522 n. 21, 88 S.Ct. 1770. In Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court clarified that the “standard is whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath .... [T]his standard ... does not require that a juror’s bias be proved with unmistakable clarity” (internal quotations omitted). The Court specified, in Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007), that a trial court removing a potential juror “makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts.” Further, “when there is ambiguity in the prospective juror’s statements, ‘the trial court, aided as it undoubtedly [is] by its assessment of [the venireman’s] demeanor, [is] entitled to" }, { "docid": "23585216", "title": "", "text": "been improper. The judge did not fail to exclude for cause a venireman that Mathews wished excluded (which would have forced Mathews to use a peremptory strike and thus potentially prejudice his case), and the trial judge did not conduct the voir dire so that a venireman who may or may not have been prejudiced remained on the panel (which would have resulted in the same harm). Instead, the judge immediately excluded veniremen who expressed some bias against the government without first questioning them further on an individual basis. We are doubtful whether this harmed Mathews in any way or whether any harm that did result can be the basis of a sixth amendment challenge. As stated by the Ninth Circuit in addressing a situation in which the appellant contended that the trial judge had erred in excusing two jurors for cause on his own motion: Moreover, regardless of the propriety of excusing two veniremen, we would not be inclined to reverse. The defendant is entitled to an array of impartial jurors to whom he may direct his peremptory challenges but, having been provided with such a panel, he suffers no prejudice if a juror, even without sufficient cause, is excused by the Court. United States v. Calhoun, 542 F.2d 1094, 1103 (9th Cir.1976), cert. denied sub nom., Stephenson v. United States, 429 U.S. 1064, 97 S.Ct. 792, 50 L.Ed.2d 781 (1977). IV. Mathews also contends the trial court erred in denying his motion for mistrial based on the prosecution’s use of its peremptory strikes to exclude all blacks from the jury. We disagree. A. The Supreme Court recently addressed this issue in Batson v. Kentucky, --- U.S. ---, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and the principles elucidated there control this case. In Batson, the court established that “the State’s privilege to strike individual jurors through peremptory challenges is subject to the commands of the Equal Protection Clause,” Batson, 106 S.Ct. at 1718, and “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors" }, { "docid": "5723061", "title": "", "text": "defendant’s case. In Lett v. United States, 15 F.2d 690 (8th Cir.1926), the Court ordered a new trial where eight members of Lett’s jury were jurors on the panel which convicted Lett’s wife that same day. In Primeaux’s case, all of the potential jurors seated for voir dire were asked if they knew the defendant or had ever heard his name before. Only one responded positively and was excused. The potential jurors were also asked whether they had heard of “Operation Eagle” and whether this would influence them. All jurors who responded that they would be influenced by what they heard or thought about the case were excused for cause. The jurors were further questioned by defense counsel whether they had formed any opinion about the defendant or any of the other eases they had been questioned about and they gave negative responses. In sum, we find no error because Primeaux has failed to show that any of the petit jurors in his case were in any way biased. Primeaux’s final argument for reversal is that his sixth amendment right to an impartial jury was violated because the court refused to allow questions on voir dire designed to elicit bias of veniremen toward the offenses charged or the defense of entrapment. The general rule is that, while a district judge should allow a lawyer a full opportunity to question jurors about how factors which will be revealed by the evidence will influence them, a district judge has substantial discretion in determining the form and scope of voir dire, Fed.R.Crim.P. 24(a); Rosales-Lopez v. United States, 451 U.S. 182, 187, 188-89, 101 S.Ct. 1629, 1633, 1634-35, 68 L.Ed.2d 22 (1981); United States v. Cassel, 668 F.2d 969 (8th Cir.), cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1348 (1982), and will be reversed only for an abuse of discretion and where substantial prejudice to the defendant is created. Id., at 971; United States v. Drefke, 707 F.2d 978 (8th Cir.), cert. denied, — U.S.-, 104 S.Ct. 359, 78 L.Ed.2d 321 (1983). The trial court allowed extensive voir dire in this" }, { "docid": "2499033", "title": "", "text": "there is none, petitioner has exhausted his available state remedies in regard to the contentions made before the district court. Stem v. Turner, 370 F.2d 895 (4 Cir. 1966); McNeil v. State of North Carolina, 368 F.2d 313 (4 Cir. 1966). We conclude that petitioner is entitled to a writ of habeas corpus because his constitutional rights were violated by the manner in which the jury to determine his criminal responsibility was selected, and particularly because the prosecutor was allowed successfully to challenge prospective jurors for cause who expressed sentiments against capital punishment and thus to disqualify a substantial segment of the panel, without the additional determination being made that their objections to capital punishment would preclude them from rendering a fair verdict on the issue of guilt. We confine our consideration, therefore, to that issue. It is undisputed that members of the panel, from which the jury that convicted petitioner was chosen, were interrogated as to whether they had any sentiment or reservation against capital punishment; and any who expressed any such sentiment or reservation were, at the request of the prosecutor, immediately excused for cause without further inquiry. Thirty-four of seventy-five prospective jurors were disqualifed on this broad ground. None of these thirty-four was asked whether his scruples against capital punishment would interfere in any way in the determination of petitioner’s guilt or innocence. Thus, 45.33% of the cross-sectional panel was eliminated from service on the petit jury because of a conscientious scruple toward- capital punishment without inquiry as to what effect, if any, their scruples would have on their ability to decide the issue of petitioner’s guilt or innocence. Moreover, four veniremen were peremptorily challenged by the prosecution after preliminary questioning established that they were less than firm believers in capital punishment. Including these four, thirty-eight out of seventy-five veniremen (50.66% of the total) were thus excluded from petit jury service for these reasons. In sharp contrast to the 45.33% of excluded jurors, a juror who admitted that he had “more or' less, a fixed opinion” about the case as a result of reading about it in" }, { "docid": "22346918", "title": "", "text": "that the jurors were qualified to sit. In my view, a juror’s acknowledgment of exposure to pretrial publicity initiates a duty to assess that individual juror’s ability to be impartial. In Patton v. Yount, supra, we determined that in federal habeas review, the statutory presumption of correctness of 28 U. S. C. § 2254(d) should attach to a state court’s determination that a particular juror could be impartial. We found “good reasons to apply the statutory presumption of correctness to the trial court’s resolution of these questions” because “the determination has been made only after an extended voir dire proceeding designed specif ically to identify biased veniremen” and because “the determination is essentially one of credibility, and therefore largely one of demeanor.” 467 U. S., at 1038. Our willingness to accord substantial deference to a trial court’s finding of juror impartiality rests on our expectation that the trial court will conduct a sufficient voir dire to determine the credibility of a juror professing to be impartial. There is no single way to voir dire a juror, and I would not limit the trial judge’s wide discretion to determine the appropriate form and content of voir dire questioning. Little interaction may be required to make an individual determination that a juror has the willingness and the ability to set aside any preconceived ideas about the evidence in the case or the guilt or innocence of the defendant. A trial judge might choose to ask about the content of the publicity the juror has encountered, and this knowledge could help in deciding whether the juror’s claim of impartiality should be accepted. But the judge can also evaluate impartiality by explaining the trial processes and asking general questions about the juror’s commitment to follow the law and the trial court’s instructions. For instance, the questions which the trial judge asked in this case would suffice if he had asked them of individual jurors and received meaningful responses. The Court is correct that asking content questions in front of the other jurors may do more harm than good. Further, I agree with Justice O’Connor" } ]

[ { "docid": "1152932", "title": "", "text": "production of antibodies that protect against disease. Some infectious organisms, such as those causing diphtheria and tetanus, excrete soluble toxins insolable by medical research. The toxin is inactivated with formaldehyde and transformed into a toxoid. The toxoid is then used in a vaccine, as it can immunize against disease by stimulating the production of antibodies in the recipient, even though it has lost its own poisonous qualities. This is not the case, however, with vaccines such as Tri-Immunol. Tri-Immunol is a so-called whole cell vaccine because it contains whole killed pertussis organisms. The whole organism is used because the pertussis organism contains fifteen or sixteen different antigens, and medical science has yet to isolate the one that stimulates protection against the disease. See Tinnerholm v. Parke, Davis & Co., 411 F.2d 48, 50 (2d Cir.1969). Courts that have addressed the issue of liability for adverse reactions to the DPT vaccine have commented that “the bacterial organism which causes pertussis is so complex as to make impossible the isolation and deactivation of the toxin or poison.” Ezagui, 598 F.2d at 731; accord Tinnerholm, 411 F.2d at 50. Because of this difficulty, at the time of Kevin Toner’s vaccination, the whole cell pertussis vaccine was the only pertussis vaccine licensed by the Food and Drug Administration (FDA) for use in the United States. It remains the only licensed vaccine today. The whole cell pertussis vaccine is neuro-toxic and can cause adverse reactions. These reactions are of two types: local and severe. Local reactions include swelling, fever, irritability, and crying spells. Se vere reactions include encephalopathy, paralysis, and even death. The expected rate of severe reactions ranges between one in 100,000 and one in 310,000 doses. Prior to this incident, there had been only one case of transverse myelitis reported in connection with a DPT vaccine. During the 1950’s, the Eli Lilly Company developed a fractionated cell pertussis vaccine called Tri-Solgen that was prepared by treating whole killed pertussis cells with salt. Early studies indicated that this method of preparation resulted in a less toxic vaccine, and following its approval by the FDA" } ]

[ { "docid": "14169194", "title": "", "text": "as a matter of law that DPT vaccine is an “unavoidably unsafe” prescription drug which contains an adequate warning, and enter judgment in defendant’s behalf. After considering all well-pleaded facts in plaintiffs’ favor, the court is convinced that defendant is not entitled to summary judgment and this case must proceed to trial. As will be explained herein, the court finds Congress did not intend to preempt state tort claims asserted by a victim of an adverse reaction to an FDA-approved drug. Further, the court finds that Johnson is distinguishable from the case at bar and does not require the entry of judgment in defendant’s behalf. FACTS Defendant Wyeth manufactures the DPT vaccine which is used to immunize children against the diseases of diptheria, pertussis (whooping cough) and tetanus (lockjaw). The vaccine is administered to infants at two, four, six and eighteen months. A booster is administered prior to the child’s entrance into school. The DPT vaccine is comprised of three component parts which will be more thoroughly described herein. Those components are diptheria toxoids, tetanus tox-oids, and a pertussis whole cell vaccine. It is the pertussis component which causes severe reactions such as suffered by Michelle Graham. While plaintiffs contend the pertussis component of the vaccine could have been safer, they do not argue that a pertussis vaccine is unnecessary or that it has not saved millions of lives. In the early 1900s, pertussis was a leading cause of death in children in this country. In 1934, when this country suffered its worst pertussis epidemic, there were 265,000 reported cases of pertussis per year, and 7500 related deaths. Hinman and Koplan, Pertussis and Pertussis Vaccine: Re Analysis of Benefits, Risks and Costs, Journal of the American Medical Association (June 15, 1984). By the early 1940s, pertussis was responsible for two and one-half times the number of deaths as all of the following diseases combined: measles, mumps, rubella, diptheria, polio, meningitis, chicken pox, and scarlet fever. Id. Hurley v. Lederle Lab., Div. of American Cyanamid, 651 F.Supp. 993, 995 (E.D.Tex.1986). The DPT vaccine containing the “whole cell” pertussis vaccine was licensed" }, { "docid": "3598871", "title": "", "text": "the body, and not infrequently there is a resultant mental retardation. The disease is particularly dangerous for children during their first year of life, since little or no maternal immunity is passively transferred to the newborn. Immunity, however, may be obtained through the injection of a vaccine. A vaccine, by introducing an antigenic factor into the body of the recipient, is intended to stimulate the production of antibodies, which antibodies confer protection against the disease. In the process, lymphocytes, a form of cell contained in the lymph glands, absorb the antigenic factor and produce an antitoxin against the particular disease. With some infectious diseases, such as diphtheria and tetanus, it has been possible in developing a vaccine to isolate the soluble toxin or poison excreted by the bodies of these bacteria, and to inactivate this toxin with formaldehyde, thus converting the toxin into what is called a toxoid. This toxoid preserves the ability to immunize against the disease by stimulating the production of antibodies in the recipient, but it has lost its poisonous qualities. The pertussis organism, however, is a unique, very complex one containing many different factors. There is an exotoxin, an endotoxin, a protective antigen, a factor that gives the Schwartzman phenomenon, a factor sensitizing to histamine, yeast, protein extracts, vaccines and endotoxin, to infection by gram negative bacteria and by influenza, to X-rays, pressure, the stress of cold, and to a marked degree sensitizing to ceretonium, one of the important neuro-hormones of the brain. The exotoxin in the pertussis organism is thermo labile, i. e., it is destroyed by heat, and all vaccines with which we are concerned are heated during preparation and the thermal labile exotoxin destroyed. However, the endotoxins inside the cell are not destroyed by heat. It is this endotoxin, also called a lipopolysaccharide, to which febrile reaction following administration of pertussis vaccine is usually attributed. In addition to the protective antigen already mentioned, there are some fourteen or fifteen different antigens, and nobody knows which, of all these antigens, is the one which stimulates production of the antibodies conferring protection against pertussis (whooping" }, { "docid": "14169195", "title": "", "text": "tox-oids, and a pertussis whole cell vaccine. It is the pertussis component which causes severe reactions such as suffered by Michelle Graham. While plaintiffs contend the pertussis component of the vaccine could have been safer, they do not argue that a pertussis vaccine is unnecessary or that it has not saved millions of lives. In the early 1900s, pertussis was a leading cause of death in children in this country. In 1934, when this country suffered its worst pertussis epidemic, there were 265,000 reported cases of pertussis per year, and 7500 related deaths. Hinman and Koplan, Pertussis and Pertussis Vaccine: Re Analysis of Benefits, Risks and Costs, Journal of the American Medical Association (June 15, 1984). By the early 1940s, pertussis was responsible for two and one-half times the number of deaths as all of the following diseases combined: measles, mumps, rubella, diptheria, polio, meningitis, chicken pox, and scarlet fever. Id. Hurley v. Lederle Lab., Div. of American Cyanamid, 651 F.Supp. 993, 995 (E.D.Tex.1986). The DPT vaccine containing the “whole cell” pertussis vaccine was licensed by the FDA in 1949. Due to the widespead use of the vaccine in this country, pertussis has virtually been eradicated. However, because of the persistent nature of the pertussis bacteria, there is a continuing and substantial risk of epidemics if the use of the vaccine were to decline significantly. Hurley, 651 F.Supp. at 995. The nature of the DPT vaccine and its component parts was recently capsuled by the Ninth Circuit, and is instructive herein: By introducing an antigenic factor into the body, vaccines stimulate the production of antibodies that protect against disease. Some infectious organisms, such as those causing diptheria and tetanus, excrete soluble toxins insoluble by medical research. The toxin is inactivated with formaldehyde and transformed into a toxoid. The toxoid is then used in a vaccine, as it can immunize against disease by stimulating the production of antibodies in the recipient, even though it has lost its own poisonous qualities. This is not the case, however, with [the Pertussis component]. The [Pertussis] vaccine is a so-called whole cell vaccine because it" }, { "docid": "14169196", "title": "", "text": "by the FDA in 1949. Due to the widespead use of the vaccine in this country, pertussis has virtually been eradicated. However, because of the persistent nature of the pertussis bacteria, there is a continuing and substantial risk of epidemics if the use of the vaccine were to decline significantly. Hurley, 651 F.Supp. at 995. The nature of the DPT vaccine and its component parts was recently capsuled by the Ninth Circuit, and is instructive herein: By introducing an antigenic factor into the body, vaccines stimulate the production of antibodies that protect against disease. Some infectious organisms, such as those causing diptheria and tetanus, excrete soluble toxins insoluble by medical research. The toxin is inactivated with formaldehyde and transformed into a toxoid. The toxoid is then used in a vaccine, as it can immunize against disease by stimulating the production of antibodies in the recipient, even though it has lost its own poisonous qualities. This is not the case, however, with [the Pertussis component]. The [Pertussis] vaccine is a so-called whole cell vaccine because it contains whole killed pertussis organisms. The whole organism is used because the pertussis organism contains fifteen or sixteen different antigens, and medical science has yet to isolate the one that stimulates protection against the disease. See Tinnerholm v. Parke, Davis & Co., 411 F.2d 48, 50 (2d Cir.1969). Toner for Toner v. Lederle Laboratories, 779 F.2d 1429, 1430 (9th Cir.1986). Because the whole cell vaccine retains its poisonous qualities, it is “neurotoxic” and can cause adverse reactions which may be mild (local), or severe. Mild reactions may include swelling, fever, irritability, and crying spells. Severe reactions include encephalopathy, paralysis and death. The expected rate of such reactions is controverted by the parties. Defendant claims about one out of every 7,000 children will suffer high fever or convulsions while one of every 100,000 children will suffer brain damage; plaintiffs claim these figures are inaccurate as to the Wyeth vaccine because they are based on faulty data. Plaintiffs further contend that Wyeth is aware that the incidence of severe reactions is actually much higher. In recognition of" }, { "docid": "5236035", "title": "", "text": "OF WARNINGS The next issue to be addressed is whether the warning Lederle gave to the prescribing physician, Dr. Abbott, was adequate as a matter of law. Though ordinarily the adequacy of a warning is a question of fact for the jury, Ross v. Jacobs, 684 P.2d 1211 (Okla.App.1984), it is not improper for the court to determine that a warning is adequate as a matter of law. Steele v. Daisy Mfg. Co., 743 P.2d 1107 (Okla.App.1987). The DTP vaccine is used to immunize children against the diseases of diphtheria, pertussis (whooping cough) and tetanus. The pertussis component can cause adverse reactions ranging from swelling and fever to, rarely, severe brain damage or death. See Toner v. Lederle Laboratories, 779 F.2d 1429, 1430-31 (9th Cir.1986) for a concise, informative discussion of the development and licensing of this vaccine. Lederle furnished purchasing doctors, such as Dr. Abbott, with package inserts describing possible adverse reactions and contra-indications to the vaccine’s use. The package insert dated February 1980 was the warning distributed along with vials of vaccine distributed during 1981 and 1982. It contained the following language: ADVERSE REACTIONS Adverse reactions may be local and include pain, erythema, tenderness and in-duration at the site of injection. Significant reactions attributed to the pertussis vaccine component have been high fever greater than 39°C), a transient shock-like episode, excessive screaming, somnolence, convulsions, encephalopathy and thrombocytopenia. Such reactions almost always appear within 24 to 48 hours after injection but have been thought to occur after an interval as long as seven days. A small nodule may develop at the site of injection and remain for a few weeks before being completely absorbed. Sterile abscesses have been reported. Systemic reactions include mild to moderate transient fever, chills, malaise, and irritability. Neurological disorders such as encephalopathy, possibly due to the pertussis component, have been reported to occur rarely following the injection of this product and they may be fatal, or result in permanent damage to the central nervous system. ****** Should symptomatology referable to the central nervous system develop following administration, no further immunization with this product should be" }, { "docid": "14169198", "title": "", "text": "the dangerous propensities of the whole cell vaccine, efforts have been made to develop a fractionated cell pertussis vaccine. During the 1950s, the Eli Lilly Company developed a “split cell” vaccine called Tri-Solgen. Early studies indicated this vaccine was less toxic than the whole cell and it was approved by the FDA in 1967. At that time, Lilly occupied a substantial share of the DPT market. In 1975, Lilly withdrew from the vaccine business and sold its Tri-Solgen vaccine to Wyeth. According to plaintiffs, in an effort to save on cost, Wyeth substituted its own “ingredients” (or “strains”) into the Lilly “recipe” for the split cell vaccine. Wyeth then attempted to license this vaccine, but no license was granted by the FDA. Wyeth has made no further attempts to license a fractionated cell vaccine. Moreover, no such vaccine is licensed in this country today. Of course, a pharmaceutical company is prohibited from marketing a product absent a license — to do so would constitute a criminal offense. 21 U.S.C. §§ 331(d), 333(a), 355(a); see also Toner v. Lederle, 779 F.2d at 1431; but see 21 CFR 620.1 (allowing for manufacture of “either killed whole Bordetella pertussis bacteria or a fraction of Bordetella pertussis bacteria.” [emphasis added]). On March 17, 1980, plaintiff Michelle Graham, who was only a few months old, was administered defendant’s DPT vaccine by a nurse at a county office of the Missouri Department of Health. Shortly thereafter Michelle developed a severe and irreversible neurological condition known as encephalopathy. For the purposes of this motion, the court will assume the plaintiffs condition was caused by the pertussis vaccine. Wyeth furnished medical practitioners who purchased the vaccine with pamphlets describing contra-indications and possible adverse reactions to the drug’s use. The pamphlet in use at the time of Michelle Graham’s immunization stated, in pertinent part: The below-listed serious, and occasionally fatal, adverse reactions have been reported following administration of pertussis-vaccine-containing preparations. The incidence of these reactions is unknown, but they seem to be exceedingly rare 1. Severe temperature elevations— 105°F. or higher. 2. Collapse with rapid recovery. 3. Collapse followed" }, { "docid": "14169199", "title": "", "text": "Toner v. Lederle, 779 F.2d at 1431; but see 21 CFR 620.1 (allowing for manufacture of “either killed whole Bordetella pertussis bacteria or a fraction of Bordetella pertussis bacteria.” [emphasis added]). On March 17, 1980, plaintiff Michelle Graham, who was only a few months old, was administered defendant’s DPT vaccine by a nurse at a county office of the Missouri Department of Health. Shortly thereafter Michelle developed a severe and irreversible neurological condition known as encephalopathy. For the purposes of this motion, the court will assume the plaintiffs condition was caused by the pertussis vaccine. Wyeth furnished medical practitioners who purchased the vaccine with pamphlets describing contra-indications and possible adverse reactions to the drug’s use. The pamphlet in use at the time of Michelle Graham’s immunization stated, in pertinent part: The below-listed serious, and occasionally fatal, adverse reactions have been reported following administration of pertussis-vaccine-containing preparations. The incidence of these reactions is unknown, but they seem to be exceedingly rare 1. Severe temperature elevations— 105°F. or higher. 2. Collapse with rapid recovery. 3. Collapse followed by prolonged prostration and a shock-like state. 4. Screaming episodes characterized by a prolonged period of peculiar crying during which the infant cannot be comforted. 5. Isolated convulsion(s) with or without fever. 6. Frank encephalopathy with changes in the level of consciousness, focal neurological signs, and convulsions with or without permanent neurological and/or mental deficit. 7. Thrombocytopenic purpura. The occurrence of sudden-infant-death syndrome (SIDS) has been reported following administration of DTP. The significance of these reports is unclear. It should be kept in mind that the three primary immunizing doses of DTP are usually administered to infants between the age of 2 and 6 months and that approximately 85 percent of SIDS cases occur in the period 1 through 6 months of age.... Occurrence of any of the following signs, symptoms, or conditions following administration is a contraindication to further use of this product and/or pertussis vaccine as the single antigen: fever over 103°F (39°C); convulsion(s) with or without accompanying fever; alterations of consciousness; focal neurological signs; screaming episodes (also call screaming fits); collapse; thrombocytopenic" }, { "docid": "3598872", "title": "", "text": "pertussis organism, however, is a unique, very complex one containing many different factors. There is an exotoxin, an endotoxin, a protective antigen, a factor that gives the Schwartzman phenomenon, a factor sensitizing to histamine, yeast, protein extracts, vaccines and endotoxin, to infection by gram negative bacteria and by influenza, to X-rays, pressure, the stress of cold, and to a marked degree sensitizing to ceretonium, one of the important neuro-hormones of the brain. The exotoxin in the pertussis organism is thermo labile, i. e., it is destroyed by heat, and all vaccines with which we are concerned are heated during preparation and the thermal labile exotoxin destroyed. However, the endotoxins inside the cell are not destroyed by heat. It is this endotoxin, also called a lipopolysaccharide, to which febrile reaction following administration of pertussis vaccine is usually attributed. In addition to the protective antigen already mentioned, there are some fourteen or fifteen different antigens, and nobody knows which, of all these antigens, is the one which stimulates production of the antibodies conferring protection against pertussis (whooping cough). By reason of the complexity and mystery of the pertussis organism, it was impossible to isolate the toxin conferring protective activity and make a toxoid out of it, as in the case of diphtheria and tetanus. Therefore, it was necessary to administer the entire bacteria organism, treating it in some way by heat or otherwise to kill the organism but preserve the antigenicity. As a result, whereas there were practically no reactions to diphtheria or tetanus toxoids, there were not uncommonly reactions to pertussis vaccine such as a swollen injection area and some fever. Occasionally, there was severe pain from the site of the injection, and on rare occasions convulsions, high fever and the neurological sequelae of brain hemorrhage, hemiplegia and mental retardation, just as with the disease itself. The cause of these neurological manifestations following the use of pertussis vaccine is not definitely known either on a pathological, histological or clinical basis. These manifestations, however, were first brought to the attention of the medical profession in April of 1948. Thereafter there were developed" }, { "docid": "14294762", "title": "", "text": "to such a degree that he will never be able to take care of himself and will require close supervision for the rest of his life. In the early 1940’s American drug manufacturers combined pertussis (whooping cough) vaccine with diphtheria toxoid and tetanus toxoid, thereby making a three-in-one combination known as D.P.T. (Diphtheria-Pertussis-Tetanus). This product has been generally and successfully used by doctors treating young children and is manufactured by a number of drug companies and public health bodies in the United States. Parke-Davis markets its three-in-one product under the name “Trio-gen.” Diphtheria and tetanus antigens in D.P.T. are toxoids while pertussis antigen is a vaccine. The difference is that toxoids are toxins produced by living bacteria, separated and treated so as to destroy toxicity while preserving antigenicity. Vaccines are preparations of whole organisms that can be killed or attenuated and suspended in solution. In 1953 Dr. Jonas Salk developed a successful poliomyelitis vaccine, and thereafter Parke-Davis gave consideration to including the poliomyelitis vaccine with its D.P.T. product, Triogen. Inflammatory reactions involving the central nervous system occasionally follow the injection of various vaccines and serums, including pertussis vaccine, but despite its danger all the medical witnesses agreed that immunization against pertussis was proper and that they would use it or had used it for their own children or for children under their care. Some states even require pertussis vaccinations before a child can be admitted to school. Pertussis vaccine is “biological” as opposed to a drug within the framework of federal statutes and regulations (42 U.S.C.A. § 262 et seq.). Its licensing and regulation are therefore under the Department of Health, Education and Welfare (H.E.W.) rather than through the Food and Drug Administration (F.D.A.). Dr. Margaret Pittman was chief of the Laboratory of Bacterial Products for the Division of Biologies Standards of the National Institutes of Health (D.B.S.) under H.E.W., and reviewed license applications that included pertussis vaccine. Each lot of vaccine had to be specifically released by D.B.S. before it could be placed upon the market. Pertussis vaccine is made of bacteria that has been cultured from bacteria isolated" }, { "docid": "3598873", "title": "", "text": "cough). By reason of the complexity and mystery of the pertussis organism, it was impossible to isolate the toxin conferring protective activity and make a toxoid out of it, as in the case of diphtheria and tetanus. Therefore, it was necessary to administer the entire bacteria organism, treating it in some way by heat or otherwise to kill the organism but preserve the antigenicity. As a result, whereas there were practically no reactions to diphtheria or tetanus toxoids, there were not uncommonly reactions to pertussis vaccine such as a swollen injection area and some fever. Occasionally, there was severe pain from the site of the injection, and on rare occasions convulsions, high fever and the neurological sequelae of brain hemorrhage, hemiplegia and mental retardation, just as with the disease itself. The cause of these neurological manifestations following the use of pertussis vaccine is not definitely known either on a pathological, histological or clinical basis. These manifestations, however, were first brought to the attention of the medical profession in April of 1948. Thereafter there were developed additional controls over the production of pertussis vaccine. Under the new regulations the encephalopathic type of reaction was minimized. The use of phosphate adjuvants made possible a decrease in the amount of pertussis in the formula; new maximum as well as minimum potency standards were set; and the toxicity of the pertussis component was reduced by extra heating and by the toxicity test. The potency test is performed by injecting groups of mice with varying dilutions of vaccine and, then, after a period of time, challenging the mice with virulent organisms. The toxicity test was performed by injecting a group of ten mice of specified weight with a specified dose of vaccine and weighing the group at specified intervals. I will have further occasion herein to discuss in greater detail the matter of tests as to their adequacy in the present case. Mention has been made above of the use of phosphate adjuvants which permitted a reduction of the amount of pertussis in the formula. Today, at least in American vaccines, an aluminum salt is" }, { "docid": "16073895", "title": "", "text": "of Diseases of Children 867, 871 (1986); Leibel, Pertussis Vaccination: Benefits and Risks, Drug Therapy, Oct. 1984, at 46. No scientific study, however, has compared the incidence of permanent side-effects between whole-cell vaccines and the two other types. Several studies and reports have compared temporary adverse reactions caused by the three types of vaccines. The earliest study was carried out in 1967 by a Dr. Russell J. Blattner. This “Blattner Study” concluded that Lederle’s whole-cell vaccine caused statistically significant greater incidence of temporary reaction than Lilly’s split-cell design for pain and irritability among infant males, for swelling among infant females, and for temperature rise among all infants. There is evidence that, as early as 1964, Lederle knew that the split-cell design was less reactive than TriImmunol. Internal Lederle memoranda over the following decade reflect this fact. Later studies have examined rates of temporary reaction between whole-cell and acellular vaccines, and have concluded that whole-cell is more reactive. E.g., Edwards, et al., supra, at 871 (whole-cell vaccine produced more temporary fever, pain, agitation, abnormal gait, and irritation at vaccination site than did acellular vaccine); Lewis, Cherry, Holroyd, Baker, Dudenhoeffer & Robinson, A Double-Blind Study Comparing an Acellular Pertussis-Component DTP Vaccine with a Whole-Cell Pertussis-Component DTP Vaccine in 18-Month-Old Children, 140 Am. J. of Diseases of Children 872, 873 (1986) (whole-cell vaccine caused more swelling, redness, and tenderness than did acellular vaccine). There is evidence that the whole-cell vaccine contains more toxins than does the acellular type. See id. at 874; Sato, Kimura & Fukumi, Development of a Pertussis Component Vaccine in Japan, Lancet, Jan. 21, 1984, at 124. In addition, there is evidence that the acellular vaccine is at least as effective as the whole-cell vaccine in immunizing infants against pertussis. See Aoyama, Murase, Kato & Iwata, Efficacy of an Acellular Pertussis Vaccine in Japan, J. Pediatrics 180, 182 (1985); Edwards, et al., supra, at 869-70. B. FDA Licensing In the United States, vaccine manufacturers are regulated by the FDA pursuant to the Public Health Service Act, as amended, 42 U.S.C. § 262, and the federal Food, Drug and Cosmetic Act," }, { "docid": "5316963", "title": "", "text": "any. With respect to Dr. Sherman, the district court found that plaintiff had not introduced sufficient evidence to support a finding of medical malpractice. With respect to Dow and ParkeDavis, the district court found that plaintiff had not introduced sufficient evidence to support a finding either that Compligen or Quadrigen was defective or that one of them had proximately caused injury- to Mark Ezagui. Our review of the record, however, persuades us that plaintiff did make out a prima facie case against ParkeDavis and against Dr. Sherman. Defendant Parke-Davis Parke-Davis developed Quadrigen during the 1950’s as a quadruple antigen product, combining diphtheria toxoids, tetanus toxoids, Salk polio vaccine, and pertussis (whooping cough) vaccine. Vaccines confer protection against diseases by introducing antigens into the body which stimulate the production of immunizing antibodies. This process occurs when lymphocytes, cells contained in the lymph glands, absorb the antigens and produce an antitoxin against the particular disease. With some infectious diseases, such as diphtheria and tetanus, it has been possible to isolate the soluble toxin or poison excreted by these bacteria and to inactivate this toxin with formaldehyde, thereby converting the toxin into what is called a toxoid. This toxoid helps immunize the body against disease by stimulating the production of antibodies, but the toxoid will not cause disease because it has lost its poisonous qualities. By contrast, the bacterial organism which causes pertussis is so complex as to make impossible the isolation and deactivation of the toxin or poison. Since the ingredient in the pertussis bacteria which stimulates the production of protective antibodies has not been isolated, Parke-Davis and other drug companies have manufactured pertussis vaccine consisting of whole pertussis bacteria, treated to reduce their propensity to cause the disease. Because this treatment cannot completely deactivate the relevant toxin, reactions to pertussis vaccine are more frequent than are reactions to other vaccines. In the early 1940’s, drug manufacturers developed a method for combining pertussis vaccine with diphtheria and tetanus toxoids in a three-way antigen product known as “DTP” and marketed by Parke-Davis under the trade name “Triogen”. This combination allowed one shot to" }, { "docid": "16073894", "title": "", "text": "been a crime to have manufactured and sold it in 1979. See 21 U.S.C. §§ 331(d), 333(a), 355(a). The other type of vaccine, known as “acellular,” has been marketed in Japan since 1981. It has not been marketed in the United States. In an acellular vaccine, a protein component from the whole cell is purified in part and placed in the vaccine. The rest of the cell is discarded. Acellular vaccines also contain toxins. In the United States, DTP is administered to infants and young children via a series of inoculations and booster shots. This program has dramatically reduced the incidence of pertussis. In 1934, there were over 250,000 reported cases of pertussis in the United States, and 7500 deaths caused by the disease. By the 1980s, there were, at most, 3000 cases and twenty annual deaths. As mentioned previously, however, administration of the vaccine can produce undesirable side-effects. There is evidence that whole-cell vaccines can cause severe and permanent neurological damage. See Edwards, Lawrence & Wright, Diphtheria, Tetanus, and Pertussis Vaccine, 140 Am. J. of Diseases of Children 867, 871 (1986); Leibel, Pertussis Vaccination: Benefits and Risks, Drug Therapy, Oct. 1984, at 46. No scientific study, however, has compared the incidence of permanent side-effects between whole-cell vaccines and the two other types. Several studies and reports have compared temporary adverse reactions caused by the three types of vaccines. The earliest study was carried out in 1967 by a Dr. Russell J. Blattner. This “Blattner Study” concluded that Lederle’s whole-cell vaccine caused statistically significant greater incidence of temporary reaction than Lilly’s split-cell design for pain and irritability among infant males, for swelling among infant females, and for temperature rise among all infants. There is evidence that, as early as 1964, Lederle knew that the split-cell design was less reactive than TriImmunol. Internal Lederle memoranda over the following decade reflect this fact. Later studies have examined rates of temporary reaction between whole-cell and acellular vaccines, and have concluded that whole-cell is more reactive. E.g., Edwards, et al., supra, at 871 (whole-cell vaccine produced more temporary fever, pain, agitation, abnormal gait, and" }, { "docid": "13918205", "title": "", "text": "fifteen or sixteen different antigens have been described in the pertussis organism, including an exotoxin, an endo-toxin, a protective antigen, etc. One of more of these antigens confers protective ability; no one knows which one or what it is. In the production of the pertussis vaccine, the exotoxin is destroyed by heat, but the endotoxins inside the cell survive such treatment. Because of the complex nature of the pertussis bacteria and the inability to isolate the toxin in order to inactivate it, reactions to pertussis vaccine are not uncommon. There may be local reaction, such as soreness or tenderness at the site of the injection, and systemic (attacking the entire body) reaction such as fever and general discomfiture. Rarely, reactions associated with the disease itself, such as convulsions, high fever, or even brain hemorrhage and mental retardation occur. All vaccines require a preservative to keep them sterile; and one of the problems confronting Parke, Davis in the development of Quadrigen was the selection of an appropriate preservative to protect the final product from contamination. In the development of pertussis vaccines and indeed all other vaccines, up until the development of polio vaccine (licensed for distribution in 1956), the preservative universally used was mer-thiolate. The preservative used in Parke, Davis’ Triogen had been merthiolate, but because merthiolate had a deleterious effect upon the polio virus in the Salk vaccine, a new preservative had to be chosen. The preservative ultimately selected by Parke, Davis (and according to Parke, Davis, all other manufacturers of quadruple antigen products) was benze-thonium chloride (trade name Phemerol). Quadrigen was developed during 1957 and 1958 and was licensed for commercial distribution by the National Institutes of Health in the spring of 1959. The first commercial distribution took place July 10, 1959. The findings of the court below in support of its conclusion that Parke, Davis is liable to plaintiffs-appellees may be summarized as follows: 1. “ * * * by manufacturing Quadrigen in the method chosen by defendant, the chances of contracting an encephalopathy were enhanced,” because: 2. “ * * * the effect of the use of" }, { "docid": "13918203", "title": "", "text": "lethargic and bathed in perspiration. His temperature at that time was 108°, he was very white, his lips were blue, and he was limp. Dr. Feinberg was summoned, and he arrived about 7:30 a. m. He had the baby admitted to Huntington Hospital at 8:45 a. m. where the infant remained until December 18, 1959. During this time the baby developed recurrent convulsive seizures and paralysis of the right arm and leg. At the time of trial he was, and will remain, mentally retarded (with a mental age of five months) to a degree classified within the idiot-imbecile range; he is paralyzed in both right limbs and still suffers occasional seizures. Quadrigen was developed by Parke, Davis as a quadruple antigen product, combining pertussis (whooping cough) vaccine, with diphtheria and tetanus tox-oids and with the Salk polio vaccine. In the early 1940’s, a method of combining pertussis vaccine with diphtheria and tetanus toxoids into a triple antigent product (colloquially known as “DTP\") had been devoloped. The Parke, Davis DTP was marketed under the trade name “Triogen.” Vaccines are intended to stimulate the production of antibodies in order to confer protection against disease by introducing an antigenic factor into the body of the recipient. In developing a vaccine in the cases of some infectious organisms, notably diphtheria and tetanus, it has been possible to isolate a soluble toxin or poison excreted by the bodies of these bacteria, and to inactivate this toxin with formaldehyde, thereby converting a toxin into what is called a toxoid. A toxoid preserves the ability to immunize against the disease by stimulating the production of antibodies in the recipient, although it has lost its own poisonous qualities. In contrast, the bacterial organism which causes pertussis is so complex that it has been impossible to isolate and inactivate the toxin or poison. Since the ingredient in the pertussis bacteria which stimulates the production of protective antibodies has not been isolated, pertussis vaccine consists of whole pertussis bacteria, treated to remove their propensity to cause the disease, while preserving their ability to stimulate the production of protective antibodies. Some" }, { "docid": "13918204", "title": "", "text": "“Triogen.” Vaccines are intended to stimulate the production of antibodies in order to confer protection against disease by introducing an antigenic factor into the body of the recipient. In developing a vaccine in the cases of some infectious organisms, notably diphtheria and tetanus, it has been possible to isolate a soluble toxin or poison excreted by the bodies of these bacteria, and to inactivate this toxin with formaldehyde, thereby converting a toxin into what is called a toxoid. A toxoid preserves the ability to immunize against the disease by stimulating the production of antibodies in the recipient, although it has lost its own poisonous qualities. In contrast, the bacterial organism which causes pertussis is so complex that it has been impossible to isolate and inactivate the toxin or poison. Since the ingredient in the pertussis bacteria which stimulates the production of protective antibodies has not been isolated, pertussis vaccine consists of whole pertussis bacteria, treated to remove their propensity to cause the disease, while preserving their ability to stimulate the production of protective antibodies. Some fifteen or sixteen different antigens have been described in the pertussis organism, including an exotoxin, an endo-toxin, a protective antigen, etc. One of more of these antigens confers protective ability; no one knows which one or what it is. In the production of the pertussis vaccine, the exotoxin is destroyed by heat, but the endotoxins inside the cell survive such treatment. Because of the complex nature of the pertussis bacteria and the inability to isolate the toxin in order to inactivate it, reactions to pertussis vaccine are not uncommon. There may be local reaction, such as soreness or tenderness at the site of the injection, and systemic (attacking the entire body) reaction such as fever and general discomfiture. Rarely, reactions associated with the disease itself, such as convulsions, high fever, or even brain hemorrhage and mental retardation occur. All vaccines require a preservative to keep them sterile; and one of the problems confronting Parke, Davis in the development of Quadrigen was the selection of an appropriate preservative to protect the final product from contamination. In" }, { "docid": "5316964", "title": "", "text": "these bacteria and to inactivate this toxin with formaldehyde, thereby converting the toxin into what is called a toxoid. This toxoid helps immunize the body against disease by stimulating the production of antibodies, but the toxoid will not cause disease because it has lost its poisonous qualities. By contrast, the bacterial organism which causes pertussis is so complex as to make impossible the isolation and deactivation of the toxin or poison. Since the ingredient in the pertussis bacteria which stimulates the production of protective antibodies has not been isolated, Parke-Davis and other drug companies have manufactured pertussis vaccine consisting of whole pertussis bacteria, treated to reduce their propensity to cause the disease. Because this treatment cannot completely deactivate the relevant toxin, reactions to pertussis vaccine are more frequent than are reactions to other vaccines. In the early 1940’s, drug manufacturers developed a method for combining pertussis vaccine with diphtheria and tetanus toxoids in a three-way antigen product known as “DTP” and marketed by Parke-Davis under the trade name “Triogen”. This combination allowed one shot to do the work of three and was regarded as an important advance. This three-in-one combination produced no apparent increase in toxicity or reactivity. In 1953 Dr. Jonas Salk developed a polio vaccine. Following commercial development of the Salk Vaccine, Parke-Davis decided to add the new polio vaccine to its “Triogen” product in order to develop a four-way antigen product, whereby . one shot would protect against polio as well as diphtheria, tetanus, and pertussis. This new product Parke-Davis marketed under the trade name Quadrigen, beginning in July, 1959. Combining the older Triogen product with the new Salk polio vaccine, however, required a change in preservative which many investigators later believed caused the marked increase in adverse medical reactions experienced with the use of Quadrigen. All vaccines packed in multidose vials require a preservative to maintain their sterility. Prior to the development of the Salk polio vaccine, the universal preservative was merthiolate. Although originally intended to maintain sterility, merthiolate was later shown to act as a stabilizer of the vaccine, decreasing toxity but maintaining potency. Merthiolate," }, { "docid": "14169197", "title": "", "text": "contains whole killed pertussis organisms. The whole organism is used because the pertussis organism contains fifteen or sixteen different antigens, and medical science has yet to isolate the one that stimulates protection against the disease. See Tinnerholm v. Parke, Davis & Co., 411 F.2d 48, 50 (2d Cir.1969). Toner for Toner v. Lederle Laboratories, 779 F.2d 1429, 1430 (9th Cir.1986). Because the whole cell vaccine retains its poisonous qualities, it is “neurotoxic” and can cause adverse reactions which may be mild (local), or severe. Mild reactions may include swelling, fever, irritability, and crying spells. Severe reactions include encephalopathy, paralysis and death. The expected rate of such reactions is controverted by the parties. Defendant claims about one out of every 7,000 children will suffer high fever or convulsions while one of every 100,000 children will suffer brain damage; plaintiffs claim these figures are inaccurate as to the Wyeth vaccine because they are based on faulty data. Plaintiffs further contend that Wyeth is aware that the incidence of severe reactions is actually much higher. In recognition of the dangerous propensities of the whole cell vaccine, efforts have been made to develop a fractionated cell pertussis vaccine. During the 1950s, the Eli Lilly Company developed a “split cell” vaccine called Tri-Solgen. Early studies indicated this vaccine was less toxic than the whole cell and it was approved by the FDA in 1967. At that time, Lilly occupied a substantial share of the DPT market. In 1975, Lilly withdrew from the vaccine business and sold its Tri-Solgen vaccine to Wyeth. According to plaintiffs, in an effort to save on cost, Wyeth substituted its own “ingredients” (or “strains”) into the Lilly “recipe” for the split cell vaccine. Wyeth then attempted to license this vaccine, but no license was granted by the FDA. Wyeth has made no further attempts to license a fractionated cell vaccine. Moreover, no such vaccine is licensed in this country today. Of course, a pharmaceutical company is prohibited from marketing a product absent a license — to do so would constitute a criminal offense. 21 U.S.C. §§ 331(d), 333(a), 355(a); see also" }, { "docid": "1152933", "title": "", "text": "Ezagui, 598 F.2d at 731; accord Tinnerholm, 411 F.2d at 50. Because of this difficulty, at the time of Kevin Toner’s vaccination, the whole cell pertussis vaccine was the only pertussis vaccine licensed by the Food and Drug Administration (FDA) for use in the United States. It remains the only licensed vaccine today. The whole cell pertussis vaccine is neuro-toxic and can cause adverse reactions. These reactions are of two types: local and severe. Local reactions include swelling, fever, irritability, and crying spells. Se vere reactions include encephalopathy, paralysis, and even death. The expected rate of severe reactions ranges between one in 100,000 and one in 310,000 doses. Prior to this incident, there had been only one case of transverse myelitis reported in connection with a DPT vaccine. During the 1950’s, the Eli Lilly Company developed a fractionated cell pertussis vaccine called Tri-Solgen that was prepared by treating whole killed pertussis cells with salt. Early studies indicated that this method of preparation resulted in a less toxic vaccine, and following its approval by the FDA in 1967, Tri-Solgen occupied a substantial share of the market. Lilly withdrew from the vaccine business in 1975 and stopped producing Tri-Solgen. Lilly sold the right to produce Tri-Solgen to Wyeth Laboratories; however, the FDA has refused to relicense the vaccine. Lederle was aware of the neurotoxicity of Tri-Immunol as early as the 1950’s and since that time has received occasional reports of severe adverse reactions to the vaccine. Following FDA approval of TriSolgen, Lederle conducted an internal study comparing Tri-Immunol with Tri-Sol-gen in an effort to determine whether to develop its own fractionated cell product. The study found fewer local reactions associated with Tri-Solgen, but it noted no severe reactions in either cohort due to the restricted number of subjects studied. At trial, Dr. Frank Cano, the Manager of Bio-logies at Lederle, testified that the differences observed in the study lacked statistical significance. Lederle only experimented with the production of a fractionated cell product until 1975. Since then, Japan has developed a pertussis toxoid vaccine, and Lederle’s research efforts to achieve that objective may" }, { "docid": "3598870", "title": "", "text": "spectacular sudden rise and subsequent rapid reduction in temperature; the appearance of unilateral seizures and weakness; the essentially extraordinary discrepancy between the very high protein and the absence of white cells in the spinal fluid; and the flatness of the fontanel. For the same reasons, he discounted the possibility of a viral encephalitis, one of the possible alternatives raised by defendant. Likewise, the suggestion that the infant may have developed a brain abscess from otitis media is not supported by the evidence. What was it, then, that was peculiar to Quadrigen that it can be stated, with reasonable medical certainty or probability, caused the injuries already described ? In order to answer this question it is necessary to discuss in some detail pertussis and pertussis vaccine as incorporated in Quadrigen. Pertussis, or whooping cough, is a communicable respiratory disease caused by a bacterial organism. The disease may attack the brain to the extent that convulsions, high fever, and occasionally hemorrhages in the brain are produced. Sometimes this is accompanied by hemiplegia or paralysis of half the body, and not infrequently there is a resultant mental retardation. The disease is particularly dangerous for children during their first year of life, since little or no maternal immunity is passively transferred to the newborn. Immunity, however, may be obtained through the injection of a vaccine. A vaccine, by introducing an antigenic factor into the body of the recipient, is intended to stimulate the production of antibodies, which antibodies confer protection against the disease. In the process, lymphocytes, a form of cell contained in the lymph glands, absorb the antigenic factor and produce an antitoxin against the particular disease. With some infectious diseases, such as diphtheria and tetanus, it has been possible in developing a vaccine to isolate the soluble toxin or poison excreted by the bodies of these bacteria, and to inactivate this toxin with formaldehyde, thus converting the toxin into what is called a toxoid. This toxoid preserves the ability to immunize against the disease by stimulating the production of antibodies in the recipient, but it has lost its poisonous qualities. The" } ]

[ { "docid": "22656406", "title": "", "text": "an ineffective consent, the Amos, Johnson, and Bumper opinions would surely have focused upon the subjective mental state of the person who consented. Yet they did not. In short, neither this Court’s prior cases, nor the traditional definition of “voluntariness” requires proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search. c It is said, however, that a “consent” is a “waiver” of a person’s rights under the Fourth and Fourteenth Amendments. The argument is that by allowing the police to conduct a search, a person “waives” whatever right he had to prevent the police from searching. It is argued that under the doctrine of Johnson v. Zerbst, 304 U. S. 458, 464, to establish such a “waiver” the State must demonstrate “an intentional relinquishment or abandonment of a known right or privilege.” But these standards were enunciated in Johnson in the context of the safeguards of a fair criminal trial. Our cases do not reflect an uncritical demand for a knowing and intelligent waiver in every situation where a person has failed to invoke a constitutional protection. As Mr. Justice Black once observed for the Court: “ 'Waiver’ is a vague term used for a great variety of purposes, good and bad, in the law.” Green v. United States, 355 U. S. 184, 191. With respect to procedural due process, for example, the Court has acknowledged that waiver is possible, while explicitly leaving open the question whether a “knowing and intelligent” waiver need be shown. See D. H. Overmyer Co. v. Frick Co., 405 U. S. 174, 185-186; Fuentes v. Shevin, 407 TJ. S. 67, 9A-96. The requirement of a “knowing” and “intelligent” waiver was articulated in a case involving the validity of a defendant’s decision to forgo a right constitutionally guaranteed to protect a fair trial and the reliability of the truth-determining process. Johnson v. Zerbst, supra, dealt with the denial of counsel in a federal criminal trial. There the Court held that under the Sixth Amendment a criminal defendant is entitled to the assistance of counsel, and" } ]

[ { "docid": "14673290", "title": "", "text": "his right to representation; (2) appointing Joseph H. Field, Esquire, as standby counsel despite defendant’s objection; and (3) denying defendant’s motion to replace Field with another attorney with whom he was more comfortable. A. Defendant’s Waiver of Right to Counsel Defendant contends that the district court violated his sixth amendment rights by failing to make a finding that his waiver of counsel was knowing and intelligent. The fact that there was a question as to his mental stability, the defendant asserts, makes the absence of such a finding even more egregious. We believe the district court acted properly. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court addressed the issue of waiving the sixth amendment right to counsel and stated: When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forego those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Id. at 835, 95 S.Ct. at 2541 (citations omitted). The defendant argues that some of the Court’s decisions imply that the district judge must make a finding on the record that the defendant has knowingly and intelligently waived his sixth amendment rights before allowing him to proceed pro se. See, e.g., Von Moltke v. Gillies, 332 U.S. 708, 722-24, 68 S.Ct. 316, 322-23, 92 L.Ed. 309 (1948) (plurality opinion of Black, J.); Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). This circuit, however, “has not interpreted these decisions to mean that the district court must issue a particular warning or make specific findings of fact before it allows the defendant to proceed pro se.” United States v." }, { "docid": "14000918", "title": "", "text": "is a constitutional right to proceed pro se, and observing that the right to manage one’s own defense is at the heart of the Sixth Amendment’s guarantees. Of course, a defense counsel’s conflict of interests may impair his effectiveness in assisting his client, or in confronting witnesses on behalf of his client. The client, however, may waive his Sixth Amendment rights to effective assistance of counsel and to confrontation of witnesses, just as he may knowingly and intelligently waive any constitutional right. See Faretta v. California, supra, 95 S.Ct. at 2541; Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). As the Fifth Circuit recently stated in a well-reasoned opinion on facts similar to those in this case, a defendant “may waive the right to have [his] retained counsel free from conflicts of interest.” United States v. Garcia, 517 F.2d 272, 277 (5 Cir. 1975). Here, the district court did not even give Armedo and Gill the opportunity to elect to retain Kassner & Detsky as their attorneys, and to make a knowing and intelligent waiver of those rights which might be affected by the attorneys’ conflict of interests. This Circuit has, in civil cases, frequently stressed the responsibility of the district courts and the bar to avoid situations in which attorneys’ conflicts of interest may endanger the confidentiality of clients’ privileged communications, as well as cast public doubt on the ethics of the legal profession and the integrity of the judicial process. See, e. g., Hull v. Celanese Corp., 513 F.2d 568 (2 Cir. 1975); Ceramco, Inc. v. Lee Pharmaceuticals, 510 F.2d 268 (2 Cir. 1975); General Motors Corp. v. City of New York, 501 F.2d 639 (2 Cir. 1974); Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562 (2 Cir. 1973). Because these civil cases do not involve the crucial factor of the criminal defendant’s Sixth Amendment rights, however, they are not controlling in the present case. The disqualification order is, therefore, reversed and the case remanded to" }, { "docid": "9672810", "title": "", "text": "claimed disagreements with his lawyer regarding defense strategy. No claim of ineffectiveness of counsel was made. Following a lengthy colloquy with the defendant and his counsel, detailed in Part II, the court denied Betancourt’s request. Unlike the first trial, Betancourt did not testify in his own behalf at this trial. This time the jury found Betancourt guilty as charged. On August 7,1990, he was sentenced to a term of imprisonment for 292 months. His timely appeal followed. II. PRO SE REPRESENTATION In- the concluding section of his dissent in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the seminal Supreme Court decision on right to self-representation under the sixth amendment, Justice Blackmun posed rhetorically the same procedural problems we face today in this appeal: Since the right to assistance of counsel and the right to self-representation are mutually exclusive, how is the waiver of each right to be measured? If a defendant has elected to exercise his right to proceed pro se, does he still have a constitutional right to assistance of standby counsel? How soon in the criminal proceeding must a defendant decide between proceeding by counsel or pro se? Must he be allowed to switch in midtrial? May a violation of the right to self-representation ever be harmless error? Id. at 852, 95 S.Ct. at 2549 (Blackmun, J., dissenting). A. Waiver of Right to Counsel A recent First Circuit case, Tuitt v. Fair, 822 F.2d 166, 174 (1st Cir.), cert. denied, 484 U.S. 945, 108 S.Ct. 333, 98 L.Ed.2d 360 (1987), traces the history in the federal courts of the waiver of the right to counsel. In Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), the Supreme Court instructed that one requesting to represent himself must articulate “an intelligent and competent waiver” of his constitutional right to representation. The record must establish that the criminal defendant “knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed." }, { "docid": "22919677", "title": "", "text": "be in the courthouse, was assigned to sit at counsel table and assist McKee. At the request of the defendant, the court inquired whether Mr. Ferber would be able to proceed as defense counsel by Monday but, upon receiving a negative response, directed that the trial proceed. The court instructed Mr. Occhetti, who had been banished from the counsel table to the rear of the courtroom, to remain available to assist Mr. Ferber, if requested. Occhetti was subsequently recalled from exile to complete the jury selection, after which time he returned to the rear of the courtroom. After a brief trial at the beginning of the following week, McKee was convicted. DISCUSSION In seeking this writ of habeas corpus, McKee contends that his Sixth Amendment right to assistance of counsel was denied because he did not effectively waive the assistance of a lawyer. To be effective, a waiver must be knowing, intelligent and voluntary — a choice “made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942). See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); United States v. Tompkins, 623 F.2d 824, 827 (2d Cir. 1980). At oral argument, counsel for McKee conceded that the waiver in this case was knowing and intelligent, since McKee relinquished his right to court-appointed counsel with full understanding of the penalties he faced and the pitfalls of self-representation. The issue on this appeal, therefore, is whether McKee’s waiver can be said to be voluntary in light of the events which took place on the second day of jury selection. McKee contends that in electing to represent himself with the help of a legal advisor he was “given no freedom of choice,” but rather was “bowing to the inevitable.” Appellant’s Br. at 15-16 (quot ing United States ex rel. Martinez v. Thomas, 526 F.2d 750, 755-56 (2d Cir. 1975)). Of course, the very essence of a voluntary waiver is" }, { "docid": "22109370", "title": "", "text": "has no other assets with which to hire his attorney of choice, then the government must consent to the exemption of reasonable attorneys’ fees, as determined by the district court in its supervisory role, from the property otherwise subject to forfeiture. B. Waiver of Counsel We next consider whether the district court erred in permitting Orlando to proceed pro se. Orlando asserts that he did not knowingly, intelligently, and voluntarily waive his sixth amendment right to counsel. For the reasons that follow, we disagree. 1. Requirement of a Knowing and Intelligent Waiver a. It is well established that a defendant has a right to conduct his own defense in a criminal case. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, before permitting a defendant to exercise this right, the district court must ensure that he knowingly and intelligently waived his sixth amendment right to counsel: When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S., [458] at 464-465 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461] [1938]. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724 [68 S.Ct. 316, 323, 92 L.Ed. 309] (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. [269], at 279 [63 S.Ct. 236, 242, 87 L.Ed. 268] [1942], Id. at 835, 95 S.Ct. at 2541 (emphasis supplied). The Supreme Court recently has reemphasized the need for strict safeguards before permitting a defendant to waive his right to counsel. In Patterson v. Illinois, — U.S. -, 108 S.Ct. 2389, 2398, 101 L.Ed.2d 261" }, { "docid": "14000917", "title": "", "text": "that the district court give Armedo and Gill the opportunity to retain Kassner & Detsky despite the attorneys’ apparent conflict of interest, but the district court refused to do so. We are mindful of the factors on which the court below based its decision, including in particular the witnesses’ interests in preserving the confidentiality of their privileged communications, but the district court did not give sufficient weight to the appellants’ rights. Although the right to an attorney of one’s choosing is not unlimited, the Sixth Amendment does give some protection to a criminal defendant’s selection of retained counsel. See United States v. Wisniewski, 478 F.2d 274, 285 (2 Cir. 1973); United States v. Sheiner, 410 F.2d 337, 342 (2 Cir.), cert. denied, 396 U.S. 825, 90 S.Ct. 68, 24 L.Ed.2d 76 (1969); United States ex rel. Davis v. McMann, 386 F.2d 611, 618 (2 Cir. 1967), cert. denied, 390 U.S. 958, 88 S.Ct. 1049, 19 L.Ed.2d 1153 (1968). Cf. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), holding that there is a constitutional right to proceed pro se, and observing that the right to manage one’s own defense is at the heart of the Sixth Amendment’s guarantees. Of course, a defense counsel’s conflict of interests may impair his effectiveness in assisting his client, or in confronting witnesses on behalf of his client. The client, however, may waive his Sixth Amendment rights to effective assistance of counsel and to confrontation of witnesses, just as he may knowingly and intelligently waive any constitutional right. See Faretta v. California, supra, 95 S.Ct. at 2541; Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). As the Fifth Circuit recently stated in a well-reasoned opinion on facts similar to those in this case, a defendant “may waive the right to have [his] retained counsel free from conflicts of interest.” United States v. Garcia, 517 F.2d 272, 277 (5 Cir. 1975). Here, the district court did not even give Armedo and" }, { "docid": "12742979", "title": "", "text": "knowingly and intentionally waived her right to separate counsel. There is no question that such a right may be waived. See Holloway v. Arkansas, 435 U.S. at 483 n. 5, 98 S.Ct. at 1178 n. 5; Glasser v. United States, 315 U.S. at 70, 62 S.Ct. at 464; United States v. Agosto, 675 F.2d 965, 969-70 (8th Cir.), cert. denied, - U.S. -, 103 S.Ct. 77, 74 L.Ed.2d 74 (1982); United States v. Cox, 580 F.2d at 320. The district court found that Crystal knowingly and voluntarily waived her right. Waiver of the right to separate counsel was first addressed by the Supreme Court in Glasser v. United States. The Court found Glasser, an experienced assistant United States attorney, had not waived his right to the assistance of counsel by his silent acquiescence in the appointment of joint counsel. The Court stated Glasser never affirmatively waived his initial objection to joint representation and that the trial court had not shown sufficient concern for Glasser’s basic rights. Citing Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), the Court said the trial court had the responsibility to determine the accused had made an intelligent and competent waiver. 315 U.S. at 70-71, 62 S.Ct. at 464-65. At the time Crystal Unger was sentenced, although no case had squarely addressed the issue, the law in this circuit apparently required that a waiver be made with an understanding of the potential conflict. In Buffalo Chief v. South Dakota, 425 F.2d 271, 280 (8th Cir.1970), this court observed that because there was “no warning that any conflict of interest might occur during the trial,” the uneducated defendant could not be expected to possess the sophistication necessary to waive an unperceived conflict. The court recognized that the situation would be different if the possible conflict of interest was pointed out to the defendant. This observation is consistent with United States v. Swanson, 509 F.2d 1205, 1210 n. 7 (8th Cir.1975), in which the court noted that the defendants were well-educated and both were informed of the potential conflict by the" }, { "docid": "23292916", "title": "", "text": "own choosing. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. See Chandler v. Fretag, U.S., 1954, 75 S.Ct. 1. Representation by a particular attorney may be under such circumstances as not to meet the constitutional requirements. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. See Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. A conflict of interest on the part of counsel representing two different defendants may be such as to deprive the accused of the effective assistance of counsel as defined by Supreme Court decisions. Glas-ser v. United States, supra; United States v. Hayman, 342 U.S. 205, 208, 72 S.Ct. 263, 96 L.Ed. 232; Wright v. Johnston, D.C.Cal., 77 F.Supp. 687. It is immaterial whether such counsel was appointed by the Court or selected by the accused, in the absence of facts constituting a waiver of the right. Hayman v. United States, 9 Cir., 187 F.2d 456, 460, see 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232; Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14. The prejudice to a defendant from the failure to have the effective assistance of counsel results whether counsel is court appointed or selected by the accused. The right “is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, supra, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L. Ed. 680. The right to the assistance of counsel can be waived. But the courts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of such a right. “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, supra, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023," }, { "docid": "6351907", "title": "", "text": "his defense.” This broad guarantee of counsel has been interpreted to include four rights: the right to counsel, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the right to effective assistance of counsel, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the right to a preparation period sufficient to insure a minimal level of quality of counsel, and the right to be represented by counsel of one’s choice. Id. at 70, 62 S.Ct. at 464. The various components of the right to counsel sometimes conflict. The conflict often arises, as it did here, when two or more defendants choose a single attorney to represent them. In resolving such a conflict, this court has held that while the right to counsel is an absolute right, there is not an absolute right to representation by counsel of one’s choice. United States v. Garrett, 727 F.2d 1003 (11th Cir.1984), cert. granted — U.S.--, 105 S.Ct. 78, 83 L.Ed.2d 27 (1984); United States v. Hobson, 672 F.2d 825 (11th Cir.1982), cert. denied 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982). The primary reason for this attitude is the potential conflict of interest which can arise from joint representation. The appellants argue that they were informed of possible conflicts, and chose to waive their right to conflict free representation in order to be represented by their retained counsel rather than counsel appointed by the court. The Fifth Circuit in United States v. Garcia, 517 F.2d 272 (5th Cir.1975), said that “defendants enjoy the right to knowingly and intelligently waive any disqualification noted by the district court.” Id. at 274. The conclusion of the Garcia court reflects the limitations established by the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) and Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), that a waiver of a constitutional right must be an intentional relinquishment or abandonment of a known right, that it must be made knowingly, intelligently and with awareness of the" }, { "docid": "15435399", "title": "", "text": "indictment, and have concluded that Partin was not denied his Sixth Amendment right to the effective assistance of counsel. In view of Judge Scott’s 1974 warning to Partin and the appearance of codefendant Trantham as a government witness at Partin’s second trial, we find that Partin knowingly and intelligently waived his right to counsel whose loyalties were undivided. Furthermore, we find that Judge Scott’s inquiry at trial and the resulting relinquishment by Sykes of his attorney-client privilege, avoided the occurrence of any actual conflict of interest. It is clear that a defendant may waive his right to assistance of counsel who is'free from any conflict of interest. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Holloway v. Arkansas, 435 U.S. 475, 483, n. 5, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). The Court in Holloway noted that the inquiry in Glasser into whether there had been a waiver confirmed that a defendant may waive this right. 435 U.S. at 483, n. 5, 98 S.Ct. 1173. Indeed, the Court stated, 435 U.S. at 482, 98 S.Ct. at 1178, that: Requiring or permitting a single attorney to represent codefendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel. This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney; indeed, in some cases, certain advantages might accrue from joint representation. In considering whether Partin waived his right to the assistance of counsel free from any conflict of interest, it is necessary to consider the “facts and circumstances surrounding . . . [this] case, including the background, experience and conduct of” Partin. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Partin was familiar with his constitutional right to the assistance of counsel unimpaired by any conflict of interest. As discussed above, Judge Scott had quite properly held a hearing in May 1974 in which he informed Partin and the other codefendants of the risks of multiple representation and the importance of their Sixth Amendment" }, { "docid": "23610412", "title": "", "text": "case violated his right to waive his counsel and to represent himself. We review the district court’s finding of historical facts for clear error. See, e.g., United States v. Robertson, 45 F.3d 1423, 1430 (10th Cir.1995). We review de novo, however,- the ultimate question of whether a constitutional violation took place. See United States v. Taylor, 113 F.3d 1136, 1140 (10th Cir.1997). Criminal defendants have a constitutional right, rooted in the Sixth Amendment, to conduct their own defense. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Thus, a lawyer cannot be forced upon a defendant who wishes to act as his own representative, even if self-representation would be detrimental to the defendant. See id. at 834, 95 S.Ct. 2525. In this ease, the defendant moved to dismiss the public defender in June of 1996. The district court did not rule on the motion for over five months, during which time the public defender raised the competency issue and did not argue, as the defendant apparently wished him to, that the defendant was competent to stand trial. The defendant argues that the delayed resolution of his motion and his lawyer’s taking a position contrary to his own denied him the right to waive counsel and represent himself. An accused who forgoes the assistance of counsel surrenders substantial benefits. Therefore, “in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.” Id. at 835, 95 S.Ct. 2525 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); see also United States v. Baker, 84 F.3d 1263, 1264 (10th Cir.1996). The defendant’s decision to waive counsel must be knowing, voluntary, and competent before it can be recognized. See Faretta, 422 U.S. at 835, 95 S.Ct. 2525; Godinez v. Moran, 509 U.S. 389, 399-100, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (“[A] defendant choosing self-representation must do so ‘competently and intelligently’ ....”) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525). The district court had a duty to ensure that the defendant was choosing self-representation in an informed manner" }, { "docid": "12608138", "title": "", "text": "and disadvantages inherent in defending oneself.” United States v. Welty, 674 F.2d at 188. We find that the trial court failed to engage in such an inquiry. 1. The sixth amendment guarantees “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense,” withholding the power and authority to deprive an accused of life or liberty unless the accused has or waives the assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1937). The Supreme Court has recognized that the sixth amendment “stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not ‘still be done.’ ” Id. at 462, 58 S.Ct. at 1022. While the Supreme Court has recognized that a criminal defendant has the constitutional right to defend himself at trial, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Court has been scrupulous in requiring that the waiver of the sixth amendment right to assistance of counsel be voluntary and be “knowing and intelligent.” Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Noting that a “waiver is ordinarily an intentional relinquishment of a known right or privilege,” Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023, the Supreme Court has cautioned “that ‘courts indulge in every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ ” Id. (citations omitted). The Court has added that: [although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Faretta v. California, supra, 422 U.S. at 835, 95 S.Ct. at 2541, (quoting Adams" }, { "docid": "13620224", "title": "", "text": "to proceed pro se. We move on to the merits of this claim. A defendant in a state criminal trial has a right under the sixth and fourteenth amendments to proceed without counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In order for this right to attach, a defendant must voluntarily elect self-representation, by “knowingly and intelligently” waiving the reciprocal, constitutionally protected right to the assistance of counsel. Id. at 835, 95 S.Ct. at 2541; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A defendant need not be technically competent in the law to act in his or her own defense but must be competent to make the choice to proceed pro se. A defendant should “be made aware of the dangers and disadvantages of self-representation” so that the defendant “knows what he is doing and [the] choice is made with eyes open.” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942)). If a deprivation of the right to represent oneself is found, the doctrine of harmless error does not apply because, unlike many other constitutional rights, this right is not “result-oriented.” Chapman v. United States, 553 F.2d 886, 891 (5th Cir.1977). Here, we conclude that Orazio clearly and unequivocally asserted his desire to represent himself. The state trial court explained to Orazio the disadvantages of representing himself but, because the judge considered Orazio unequipped to “meet the challenges” of the charges against him, he denied Orazio’s request. The trial court’s consideration of Orazio’s legal prowess contravened the Supreme Court’s decision in Faretta. So long as Orazio voluntarily exercised his informed free will, 422 U.S. at 835, 95 S.Ct. at 2541, his technical legal knowledge bore no relevance on his right to represent himself. Id. at 836, 95 S.Ct. at 2541. In the federal habeas proceeding, the district court found that, even assuming that Orazio sufficiently asserted his constitutional right to self-representation, he subsequently waived that right, because he" }, { "docid": "22109371", "title": "", "text": "counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S., [458] at 464-465 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461] [1938]. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724 [68 S.Ct. 316, 323, 92 L.Ed. 309] (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. [269], at 279 [63 S.Ct. 236, 242, 87 L.Ed. 268] [1942], Id. at 835, 95 S.Ct. at 2541 (emphasis supplied). The Supreme Court recently has reemphasized the need for strict safeguards before permitting a defendant to waive his right to counsel. In Patterson v. Illinois, — U.S. -, 108 S.Ct. 2389, 2398, 101 L.Ed.2d 261 (1988), the Court addressed the question of what “type of warnings and procedures ... should be required before a waiver of [the Sixth Amendment] right [to counsel] will be recognized.” The Court said that its approach to the waiver question was a pragmatic one that asks “what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage.” Id. The Court further explained: At one end of the spectrum, we have concluded there is no Sixth Amendment right to counsel whatsoever at a postin- dictment photographic display identifica-tion____ At the other extreme, recognizing the enormous importance and role that an attorney plays at a criminal trial, we have imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him [to] waive his right to counsel at trial. See Faretta v. California, 422 U.S. 806, 835-836, 95 S.Ct. 2525, 2541-2542, 45 L.Ed.2d 562 (1975); cf. Von Moltke" }, { "docid": "16807681", "title": "", "text": "case. In light of the foregoing, the district court concluded that McQueen unjustifiedly insisted on dismissal of his defense counsel and therefore could not complain that he had been denied assistance of counsel. Analysis A defendant in a state criminal trial has the constitutional right to waive counsel and conduct his own defense. That decision must be knowingly and intelligently made. McKaskle v. Wiggins, — U.S. -, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Faretta requires evaluation of the waiver of counsel under the analysis articulated in Johnson v. Zerbst: The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused ... While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record. 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The determination is a practical one: Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). Faretta’s progeny and related cases flesh-out the factors which are to be weighed in this process. The court must consider the defendant’s age and education, Mixon v. United States, 608 F.2d 588 (5th Cir.1979), and other background, experience, and conduct. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Middlebrooks v. United States, 457 F.2d 657 (5th Cir.1972). The court must ensure that the waiver is not" }, { "docid": "15394386", "title": "", "text": "of counsel includes the right to counsel whose loyalty is not divided between clients with conflicting interests.” Id. at 1043 (citing Giasser v. United States, 315 U.S. 60, 70, 75-76, 62 S.Ct. 457, 646, 647, 86 L.Ed. 680 (1942)). See also Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Before proceeding into a discussion of the adequacy of the trial court’s inquiry into the issue of joint representation, as required by Fed.R.Crim.P. 44(c), it seems appropriate that we consider whether Bradshaw, through his statements and representations to the magistrate and trial court, waived his right to conflict-free counsel and therefore cannot now be heard to complain about his joint representation and any conflicts that may have arisen therefrom. As with other constitutional rights, the right to conflict-free counsel can be waived. United States v. Gaines, 529 F.2d at 1043; United States v. Garcia, 517 F.2d 272, 276 (5th Cir.1975). The standard for measuring an effective waiver of a constitutional right was set forth in the case of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Id. at 464, 58 S.Ct. at 1023. This standard was subsequently refined by the Supreme Court in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). According to that case “[wjaivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Id. at 748, 90 S.Ct. at 1469 (footnote omitted). See also United States ex rel. Williams v. DeRobertis, 715 F.2d 1174 (7th Cir. 1983) (waiver of jury trial). If a valid waiver is obtained, the defendant cannot at a later date attack his conviction based on an assertion of conflict. “A" }, { "docid": "9967121", "title": "", "text": "Volpentesta’s overly broad reading of Ellison would effectively allow clients to “create” a conflict merely by accusing their attorneys of ineffectiveness and thereby forcing them to defend themselves to the court. Given the frequency with which clients request substitute counsel,- such a broad rule would have sweeping and unwelcome implications for the ability of appointed attorneys to defend their clients. We agree with courts that have had occasion to address this issue, see United States v. White, 174 F.3d 290 (2d Cir.1999), in rejecting shch an unwarranted change in the law. - We affirm the district court’s decision not to remove counsel on the. basis of a conflict of interest. B. Volpentesta’s Waiver of his Right to Counsel We now turn to Volpentesta’s assertions that he did not knowingly, voluntarily, and intelligently waive his right to counsel. It is well-established that a criminal defendant may forgo representation and conduct his own defense, no matter how unwise that decision may be. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). While the Constitution “does not force a lawyer upon a defendant,” Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942), the district judge must ensure that the defendant’s decision to waive his right to counsel is knowing, voluntary, and intelligent, Iowa v. Tovar, 541 U.S. 77, 87, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). We review the district court’s finding of knowing and voluntary waiver for an abuse of discretion. United States v. Todd, 424 F.3d 525, 530 n. 1 (7th Cir.2005). Volpentesta first argues that the district court, by denying his repeated motions to substitute attorneys, rendered Volpentesta’s waiver of his right to counsel involuntary. He claims that he was effectively coerced into waiving counsel because Byrd and Fagan refused to subpoena the witnesses and documents he requested and otherwise meet his expectations of performance. Therefore, Volpentesta argues, he felt he had no choice but to represent himself in order to" }, { "docid": "5915318", "title": "", "text": "conflict of interest might have shown itself when this dual representation was undertaken, a review of the record as a whole shows that such a conflict developed. Reference is made to the fact that it was to the interest of Butzman to shift responsibility for the alleged false document to one or more of his employees, and that it may have been to Butzman’s interest, when faced with unfavorable newspaper publicity, to have waived a jury trial, but there was no such reason for waiving such a trial on the part of Craig. Such a conflict of interest deprives an accused of the effective “assistance of counsel” as defined by Supreme Court decisions. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Hayman, 342 U.S. 205, 208, 72 S.Ct. 236, 96 L.Ed. 232. See also Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. This right is too fundamental to permit a Court to indulge in nice calculations as to the amount of prejudice arising from its denial. Glasser v. United States, supra, 315 U.S. at page 76, 62 S.Ct. 457, 86 L.Ed. 680. It is well settled that the right to the assistance of counsel can be waived. Johnson v. Zerbst, 304 U.S. 458, 469, 58 S.Ct. 1019, 82 L.Ed. 1461; United States v. Hayman, supra, 342 U.S. at pp. 208-209, 72 S.Ct. 236, 96 L.Ed. 232. However, every reasonable presumption will be indulged against the waiver of such a fundamental right, Glasser v. United States, supra, 315 U.S., at page 70, 62 S.Ct. 457, 86 L.Ed. 680, and the Court should “not presume acquiescence in the loss of fundamental rights.” Johnson v. Zerbst, supra, 304 U.S. at page 464, 58 S.Ct. at page 1023, 82 L.Ed. 1461. The Supreme Court also said in Johnson v. Zerbst, supra, 304 U.S. at page 464, 465, 58 S.Ct. at page 1023, that an intelligent waiver of the right to counsel depends upon the particular facts and circumstances in each case, and, “whether there is a proper waiver should" }, { "docid": "9815759", "title": "", "text": "AFFIRMED. . As to Farley’s case, see Farley v. State, 238 Ga. 181, 231 S.E.2d 761 (1977). . On appeal, the Supreme Court of Georgia set aside Farley’s sentence for the attempted armed robbery because it was a lesser included offense in the felony murder. . The Fourth Circuit has held that a defendant does not have an absolute right to dismiss counsel and conduct his own defense after trial has commenced, United States v. Dunlap, 4 Cir., 1978, 577 F.2d 867. The Supreme Court denied certiorari, - U.S. -, 99 S.Ct. 174, 58 L.Ed.2d 166 (1978). TJOFLAT, Circuit Judge, dissenting: I dissent from the result reached by the majority in this case because I do not believe that, on the record before us, we can conclude that petitioner Ervin G. Taylor intelligently waived his sixth amendment right to assistance of counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), instructs that before a criminal defendant can represent himself he must knowingly and intelligently forego the benefits of representation by counsel. Faretta commands that the knowing and intelligent waiver must be evaluated under the test of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), which states: A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record. Id. at 464-65, 58 S.Ct. at 1023. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad" }, { "docid": "23198457", "title": "", "text": "of his client’s crime, see Osborn v. Shillinger, 861 F.2d 612, 628-29 (10th Cir.1988). The Commonwealth contended at oral argument that Cronic is inapplicable because Appel had declined to be represented by counsel and invoked his right to represent himself under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In Faretta, the Supreme Court examined the historical underpinnings of the right to self-representation, and ruled that a court cannot “compel a defendant to accept a lawyer he does not want” if he voluntarily and intelligently chooses to represent himself. Id. at 833, 95 S.Ct. 2525. The Court concluded that a defendant’s right to self-representation is protected in the Sixth Amendment. We are not unaware that a trial court may believe that it is caught between the Scylla and Charybdis of Cronic and Faretta. We acknowledge that the court must sometimes walk a narrow line between the Sixth Amendment requirement that a defendant be provided with counsel and its requirement that a defendant be given the right of self-representation. This is not such a case because the issue is-focused on the short period of time before the trial court accepted Appel’s waiver of counsel. It is well-established that a waiver of the right to counsel is not effective until the court accepts that it is made voluntarily, knowingly, and intelligently. See Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); see also Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (noting that the defendant “was voluntarily exercising his informed free will” to decline representation by counsel); Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (requiring a waiver of counsel to be “an intelligent and competent waiver by the accused”). Moreover, a defendant’s waiver cannot be knowing or intelligent unless the defendant is competent. See Fate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Pennsylvania’s own procedures provide that “[w]hen the defendant seeks to waive the right to counsel ..., the judge shall ascertain from the defendant, on the record, whether" } ]

[ { "docid": "8439188", "title": "", "text": "Third and Fifth Circuits, in concluding that section 7701 requires application of a preponderance of the evidence standard, also remanded for reconsideration of the agency’s decision under the appropriate evidentiary standard. See Stankis v. EPA, 713 F.2d 1181, 1186 (5th Cir.1983); Schramm v. Department of Health & Human Services, 682 F.2d 85, 91 (3d Cir.1982). . Although a criminal case, Kotteakos has generally been recognized as setting forth the Supreme Court’s classic discussion of the doctrine’s applicability in both civil and criminal cases. See 11 C. Wright & A. Miller, Federal Practice & Procedure § 2883, at 276-79 (1973). . Petitioner has also argued that the MSPB failed to comply with its statutory procedures in granting NIH’s petition for review from the presiding official’s decision in favor of Dr. Om-maya and in reversing the presiding official’s determination in part. Brief for Appellant at 26-31. These arguments are without merit. First, our recent decision in Dunning v. NASA, 718 F.2d 1170 (D.C.Cir.1983), makes clear that even if the presiding official’s alleged error does not fall within the two showings under which the MSPB may grant review under 5 C.F.R. § 1201.115 (1983), the Board nonetheless may grant review under 5 C.F.R. § 1201. 117. Id. at 1173. That provision permits the Board to reopen or reconsider a presiding official’s decision on its own motion. Under Dunning’s clear teaching, the MSPB appropriately followed those procedures in granting review in this case. Petitioner’s argument that the MSPB may not substitute its findings for those of the presiding official must likewise be rejected. It is clear that the Board may substitute its judgment for that of the presiding official. See Williams v. Veterans Admin., 701 F.2d 764, 765 (8th Cir.1983); McDonough v. United States Postal Service, 666 F.2d 647, 648 n. 1 (1st Cir.1982); Weaver v. Department of the Army, 2 MSPB 297 (1980), aff’d, 669 F.2d 613 (9th Cir.1982). Moreover, the fact that the Board’s findings differ from those of the presiding official does not alter the requirement that we evaluate the Board’s decision under the substantial evidence test. Dunning, 718 F.2d at" } ]

[ { "docid": "22434414", "title": "", "text": "to asylum claims as well as to withholding of removal and Convention Against Torture claims. When an EOIR decision contains errors, the operative question for a reviewing court as stated by Xiao Ji Chen and Cao He Lin is whether we can confidently predict the same result in the absence of errors, and this is so regardless of whether the relief sought is asylum or withholding of removal. For its part, Cao He Lin specifies three circumstances in which such confidence would be warranted. See Lin Li Hua, 453 F.3d at 99, 106-07, 2006 WL 1755289, at *5, 2006 U.S.App. LEXIS 16193, at *19. Of course, whether under the rubric of Cao He Lin or Xiao Ji Chen, the futility inquiry is not simply a matter of asking whether, notwithstanding the errors, substantial evidence can be found in the record to support the EOIR’s result. Courts’ use of the substantial evidence standard reflects the deference that we owe the agency as factfinder, and no such deference is due when the agency’s decision rests on legal error. Accordingly, where errors have been found in the EOIR decision, a residue of substantial evidence in support of the agency’s result is a necessary, but not sufficient, condition for denial of review. As Cao He Lin and Xiao Ji Chen instruct, to deny review in the face of EOIR errors, a court must have confidence that an error-free proceeding would yield the same result. The existence of substantial evidence supporting that result, without more, is not enough to give rise to such confidence. C. Reviewing the IJ’s Denial of Relief Where, as here, the BIA has adopted the IJ’s decision without issuing an opinion of its own, we review the decision of the IJ directly. Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). In reviewing the IJ’s decision, we identify a number of errors. Because we are not satisfied that the same result would be reached absent those errors, we remand to the BIA for further proceedings. In finding Li not to be believable, the IJ relied heavily on his conclusion that" }, { "docid": "9690895", "title": "", "text": "The House Report describes the role of the PAB as follows: The cornerstone of [the proposed legislation] ... is the creation of a GAO Personnel Appeals Board to handle appeals from such matters as adverse actions, prohibited personnel practices, union elections, determinations of bargaining units, unfair labor practices and discrimination appeals. In handling each of these types of cases, the GAO Personnel Appeals Board acts in the place of the Merit Systems Protection Board, the Federal Labor Relations Authority, or the Equal Employment Opportunity Commission, as applicable. The committee expects that the Board will refer to decisions of these agencies for guidance. The general counsel to the Personnel Appeals Board acts in the place of the Special Counsel to the Merit Systems Protection Board. In this way, the employees of the GAO retain all the rights enjoyed by employees in the executive branch, while, at the same time, the conflict of roles is eliminated. Id. at 5-6. Thus, Congress sought to solve the GAO’s conflict of roles problem by granting the GAO broad authority to manage its own workforce. But, at the same time, Congress also sought to guarantee employee rights by establishing an independent, internal board available to enforce and adjudicate those rights. B. Reviewability On the merits of this appeal, we first confront a challenge to the right of the GAO to seek judicial review of a PAB decision. There is, of course, a presumption in favor of reviewability which the PAB may rebut only by showing “persuasive reason to believe that . . . the purpose of Congress” was to preclude review. Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). To resolve whether this presumption has been rebutted here, we look first to the plain language of the statute. Section 4(7) of the GAOPA provides: A person may apply for review of a final decision [of the Board] ... by filing a petition for review with the United States Court of Appeals for the District of Columbia Circuit or with the court of appeals of the United States for" }, { "docid": "9690883", "title": "", "text": "The GAO contends, first, that the Board had no jurisdiction over the case because Shaller was a probationary employee at the time of his termination. Second, the GAO asserts that, even if the PAB had jurisdiction, the General Counsel, who represented Shaller pursuant to regulations implementing the GAOPA, should have been disqualified from the proceedings. The Board prefaces its response to these arguments with threshold contentions that the appeal must be dismissed as nonreviewable and, alternatively, that the GAO should be estopped from raising the disqualification issue. Otherwise, the Board rejects the GAO’s arguments as meritless, contending that its decision is supported by substantial evidence and is not inconsistent with law and, therefore, should be affirmed. For the reasons set forth below, we reject the PAB’s nonreviewability and estoppel contentions, affirm the PAB’s ruling on the disqualification issue, and defer decision on the merits (including the question of the PAB’s jurisdiction) pending further consideration by the PAB on remand of the record. I. Factual Background A. The Proceedings Before the PAB Morris Shaller began federal employment on March 10, 1980, the date of his career-conditional appointment as a GS-5 grade Procurement Agent with the Defense Logistics Agency (“DLA”). Starting from the date of this initial career-conditional appointment, Shaller began a year-long probationary period. Prior to completion of that trial period, the GAO gave Shaller a career-conditional appointment, effective May 4, 1980, without break in service, as a GS-7 grade Management Analyst. The precise nature of the personnel action effecting Shaller’s GAO appointment is seriously disputed. The Standard Form 52 (“SF 52”), requesting the personnel action, indicates both that Shaller was selected from a certificate of eligibles and that he was transferred. Whatever the nature of the personnel action effecting Shaller’s appointment, however, the SF 52 clearly indicates that he was “subject to completion of [a] 1 year probationary (or trial) period commencing 05-04-80.” On March 10, 1981, the GAO notified Shaller that he would be terminated effective March 21,1981. It is undisputed that this notice failed to grant Shaller procedural protections accorded non-probationary terminatees. Shaller wrote to the PAB on" }, { "docid": "8956452", "title": "", "text": "633a(b). The Equal Employment Opportunity Commission (“EEOC”), the executive branch agency Congress authorized to enforce the Act, recently amended its regulations to provide that “[t]he filing of a civil action by an employee or applicant involving a complaint filed under this subpart terminate[d] [administrative] processing of that complaint.” 29 C.F.R. § 1613.513 (1988). Unlike Title VII, the ADEA does not contain a provision explicitly allowing an administrative complainant to file a civil action 180 days after the filing of an administrative action. See 42 U.S.C. § 2000e-5(f). Although it is unclear whether the ADEA requires exhaustion of administrative remedies in the executive branch, once initiated, or whether a civil action may be filed prior to a disposition on the merits of the administrative complaint (see infra), GAO regulations governing ADEA claims brought against the agency clearly provide that administrative exhaustion is not required. GAO is a legislative branch agency for which the United States Congress has created a personnel system separate from the system of the executive branch. 31 U.S.C. § 731 et seq. GAO employees, however, have the same rights and remedies under laws prohibiting discrimination in employment in the federal government as do employees of the executive branch. 31 U.S.C. § 732(f)(2). Congress directed that the PAB have the same authority over equal employment opportunity and discrimination matters at GAO as its counterpart agencies, e.g., the EEOC, the Merit Systems Protection Board (“MSPB”), and the Federal Labor Relations Authority (“FLRA”), have over such matters in the executive branch. 31 U.S.C. § 732(f)(2)(A). See also GAO v. GAO Personnel Appeals Bd., 698 F.2d 516, 521-23 (D.C.Cir.1983) (PAB is independent agency authorized by the GAO Personnel Act, 31 U.S.C. § 735, to perform personnel appeal functions for the GAO previously performed by EEOC and MSPB). The PAB’s function in the administration and processing of discrimination complaints, therefore, is analogous to the function performed by the EEOC in the executive branch. Id. Commensurate with this function, the PAB has promulgated regulations which establish procedures governing discrimination actions against GAO. These regulations are codified at 4 C.F.R. Parts 27 and 28. Chennareddy" }, { "docid": "8956453", "title": "", "text": "employees, however, have the same rights and remedies under laws prohibiting discrimination in employment in the federal government as do employees of the executive branch. 31 U.S.C. § 732(f)(2). Congress directed that the PAB have the same authority over equal employment opportunity and discrimination matters at GAO as its counterpart agencies, e.g., the EEOC, the Merit Systems Protection Board (“MSPB”), and the Federal Labor Relations Authority (“FLRA”), have over such matters in the executive branch. 31 U.S.C. § 732(f)(2)(A). See also GAO v. GAO Personnel Appeals Bd., 698 F.2d 516, 521-23 (D.C.Cir.1983) (PAB is independent agency authorized by the GAO Personnel Act, 31 U.S.C. § 735, to perform personnel appeal functions for the GAO previously performed by EEOC and MSPB). The PAB’s function in the administration and processing of discrimination complaints, therefore, is analogous to the function performed by the EEOC in the executive branch. Id. Commensurate with this function, the PAB has promulgated regulations which establish procedures governing discrimination actions against GAO. These regulations are codified at 4 C.F.R. Parts 27 and 28. Chennareddy argues that he filed suit in Case 87-3538 “within a 30 day period” after the PAB’s final ruling on the class certification issue in accordance with the requirements of GAO Order 2713.2 (“[a] complainant is authorized to file a civil action in the appropriate U.S. Court ... (3) Within 30 calendar days after receipt of notice of final action taken by the Board”). Alternatively, Chennareddy argues that he properly filed suit in the District Court in Case 88-0577 after giving GAO the required thirty-day notice of his intent to sue in the District Court. Chennareddy explains that he filed the two actions in District Court to avoid a “catch-22” situation created by the unclear language in GAO Order 2713.2 requiring a party to file “within” thirty days. Chennareddy also relies upon GAO Regulation 4 C.F.R. § 28.51(c), which provides in pertinent part: (c) An employee or applicant alleging discrimination based upon ... age discrimination (29 U.S.C. 631, 633a — Age Discrimination in Employment Act) ... need not exhaust administrative appeals to GAO or to the" }, { "docid": "8956462", "title": "", "text": "apply to ADEA claims in the GAO. In this context, EEOC regulations do not apply to GAO because GAO is not a part of the executive branch. Moreover, because of this fact, the PAB replaced the EEOC in every respect in regards to GAO personnel actions. We stated in GAO v. GAO Personnel Appeals Bd., “[a]t the core of the GAO personnel system is a single agency — the PAB — which carries out the combined responsibilities of the MSPB, the Special Counsel, the FLRA, and the EEOC.” 698 F.2d at 523. GAO’s reliance upon the EEOC scheme in this case, therefore, is unavailing in light of the explicit language of GAO’s own regulations. We need not consider the general administrative exhaustion question under the ADEA addressed by the other circuits and raised by GAO in the present case. All of these cases deal with EEOC regulations governing ADEA claims. See, e.g., 29 C.F.R. § 1613.513 (1987). They do not ad dress the unique feature involved m Chen-nareddy’s claim, which is that GAO and the PAB regulations establish a different regime with which the ADEA plaintiff must comply. See GAO Order 2713.2; 4 C.F.R. § 28.51(c). Consequently, we need address only the specific question of whether under GAO and PAB regulations a federal employee must completely exhaust administrative remedies once he has invoked the administrative procedures to redress an age discrimination claim. We conclude that under GAO regulations governing ADEA claims at the time Chennareddy brought his claim in the District Court, a GAO complainant need not exhaust agency remedies before suing in the District Court. Furthermore, GAO cannot seek refuge in regulations promulgated by the EEOC or other executive branch agencies. Rather, GAO is bound by its own regulations governing civil action discrimination complaints. Black v. Romano, 471 U.S. 606, 621-22 & n. 18, 105 S.Ct. 2254, 2262-63 & n. 18, 85 L.Ed.2d 636 (1985) (government “cannot change the rules in the middle of the game”); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954) (government bound by its own regulations);" }, { "docid": "9690882", "title": "", "text": "HARRY T. EDWARDS, Circuit Judge: The General Accounting Office (“GAO”) is a legislative support agency responsible for auditing, investigating, reporting on and proposing improvements to the programs and financial activities of executive agencies in the federal government. In 1980, Congress passed the General Accounting Office Personnel Act of 1980 (“GOA-PA”), establishing a personnel system for the GAO. This system exists independent of executive branch personnel operations and authorities so as to avoid any conflict of roles between officials in the GAO and officials in the federal agencies subject to GAO oversight. Central to this independent personnel system is the GAO Personnel Appeals Board (“PAB” or “Board”), which, along with a PAB General Counsel (“General Counsel”), carries out functions comparable to those of the Merit Systems Protection Board (“MSPB”), the Office of Special Counsel (“Special Counsel”), the Equal Employment Opportunity Commission (“EEOC”), and the Federal Labor Relations Authority (“FLRA”). The GAO, here as an employer agency, seeks review of a PAB order awarding retroactive reinstatement and backpay to Morris L. Shaller, a grade GS-7 Management Analyst. The GAO contends, first, that the Board had no jurisdiction over the case because Shaller was a probationary employee at the time of his termination. Second, the GAO asserts that, even if the PAB had jurisdiction, the General Counsel, who represented Shaller pursuant to regulations implementing the GAOPA, should have been disqualified from the proceedings. The Board prefaces its response to these arguments with threshold contentions that the appeal must be dismissed as nonreviewable and, alternatively, that the GAO should be estopped from raising the disqualification issue. Otherwise, the Board rejects the GAO’s arguments as meritless, contending that its decision is supported by substantial evidence and is not inconsistent with law and, therefore, should be affirmed. For the reasons set forth below, we reject the PAB’s nonreviewability and estoppel contentions, affirm the PAB’s ruling on the disqualification issue, and defer decision on the merits (including the question of the PAB’s jurisdiction) pending further consideration by the PAB on remand of the record. I. Factual Background A. The Proceedings Before the PAB Morris Shaller began federal" }, { "docid": "22919977", "title": "", "text": "the validity of the credibility ruling against him and the IJ’s finding that his asylum application was frivolous. The case therefore presents two separate questions for review: (1) whether substantial evidence supports the IJ’s adverse credibility ruling, and (2) whether the IJ correctly decided that petitioner’s asylum application was frivolous. The first of these is not uncommon among immigration appeals, and, based on our full review of the record, we find that “the evidence so overwhelmingly supports the IJ’s [adverse credibility] finding that, notwithstanding identified errors, there is no realistic possibility of a different result on remand.” Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 395 (2d Cir.2005); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 161-62 (2d Cir.2006). The second question raises issues with which we deal far less frequently and on which the BIA has, thus far, provided no substantial guidance. Under the circumstances, we conclude that it is appropriate to remand the IJ’s finding of frivolousness so that the BIA may, in the first instance, develop clear standards for how these determinations should be made and evaluated. We discuss each of these two questions in turn. I. Adverse Credibility In cases where the BIA summarily affirms an IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the reasoning and decision of the IJ directly, treating it as the final agency determination. See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). We owe “particular deference” to an IJ’s credibility finding, “mindful that the law must entrust some official with responsibility to hear an applicant’s asylum claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant.” Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). Hence, our review of an IJ’s credibility assessment is an “exceedingly narrow inquiry to ensure that the IJ’s conclusions were not reached arbitrarily or capriciously ... [and] that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation" }, { "docid": "8956445", "title": "", "text": "Opinion for the Court filed by Circuit Judge SENTELLE. SENTELLE, Circuit Judge: Venkareddy Chennareddy (“Chennared-dy” or “appellant”) appeals orders of the District Court dismissing his age discrimination claim brought under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. (1988) (“ADEA” or the “Act\"), against the United States General Accounting Office (“GAO”) for failure to exhaust administrative remedies, see Chennareddy v. Bowsher, Civil Action Nos. 87-3538 and 88-0577, 1989 WL 90549 (D.D.C. Mar. 31, 1989), and denying Chennareddy’s motion to alter or amend the judgment. The GAO regulations in effect at the time Chennareddy filed suit in the District Court did not require exhaustion of administrative remedies; therefore, we reverse and remand the case for consideration in accordance with this opinion. I. BACKGROUND Venkareddy Chennareddy, an employee of GAO, alleges age discrimination in employment in violation of the ADEA, 29 U.S.C. § 621. On September 17, 1986, pri- or to filing suit in the District Court, Chen-nareddy and another GAO employee, Roger Carroll, filed individual and class administrative complaints of age discrimination with the GAO Civil Rights Office. Chen-nareddy and Carroll consolidated the two complaints and presented them to a hearing examiner who, on November 26, 1986, recommended that the Comptroller General of the United States (“Comptroller General”) certify the class. Pursuant to the United States General Accounting Office Operations Manual, Order 2713.2, Discrimination Complaint Processing in the United States General Accounting Office (effective Aug. 12, 1981) (“GAO Order 2713.2”), the Comptroller General reviewed Chennareddy’s complaint to determine whether to consider the complaint as a class action or as an individual complaint. The Comptroller General concluded that the putative class failed to meet the requirements for certification and therefore denied class certification on December 8, 1986. Chennareddy and Carroll appealed the decision to GAO’s Personnel Appeals Board (“PAB” or “Board”) on December 18, 1986. Chennareddy instituted his appeal in accordance with the PAB’s regulations authorizing an interlocutory appeal on the question of class certification. See GAO Order 2713.2; 4 C.F.R. § 28.45(b)(1) (1988). On November 23, 1987, the PAB, sitting en banc, denied" }, { "docid": "9690939", "title": "", "text": "(codified with some differences at 31 U.S.C. § 52-3(1) (Supp. V 1981)). . Recent amendments to title 31 of the United States Code, see supra note 1, substantially revised section 4(1) of the GAOPA. The revising statute makes two changes relevant to our consideration of section 4(1 )’s language. First, the statute deletes reference to judicial review of “agency action, findings, or conclusions . ... ” The PAB argues that the term “agency” in this phrase meant the GAO, and thus that Congress contemplated judicial review only at the instance of employees. Prior to clarification, the word “agency” was indeed highly ambiguous. But since most courts have construed the term “agency” to refer to the adjudicatory agency rather than the employing agency under an identically phrased scope of review provision in the Reform Act, see Devine v. White, 697 F.2d 421 at 439 n. 102 (D.C.Cir.1983), we think the revising statute simply clarified Congress’ original intent that “agency” meant the PAB, not the GAO. See Russell v. LEAA, 637 F.2d 1255, 1258 n. 5 (1980) (a legislative revision intending no substantive change may sometimes “clarif[y] the original legislative intent”). Second, the revising statute substitutes the term “person” for “petitioner.” As will be explained below, we think the legislative history of the GAOPA shows an intent to include the GAO within the class of persons entitled to seek review. . That analysis states, in full: Paragraph (1) of section 4(7) provides that final decisions of the Board (or of any panel or individual member designated under subsection (j)) under subsection (h)(1) (relating to adverse actions), (h)(2) (relating to prohibited personnel practices), (h)(5) (relating to unfair labor practices), or (h)(6) (relating to discrimination) may be appealed to the United States court of appeals for the appropriate circuit. Any appeal under subsection (1) shall be in accordance with the procedures of chapter 158 of title 28, United States Code, relating to orders by Federal agencies. The last sentence of paragraph (1) requires any petition for review to be filed within 30 days after the date the petitioner receives notice of the final decision" }, { "docid": "8502338", "title": "", "text": "reasonable jury could conclude, in context, that either evinced discriminatory intent. Turning to Chen’s retaliation claim, we note that NYCHRL’s retaliation provision is broader than Title VII’s- — protecting plaintiffs who “oppos[e] any practice forbidden under” the law from conduct “reasonably likely to deter a person engaging in such action.” Mihalik, 715 F.3d at 112; see also N.Y.C. Admin. Code § 8-107(7). Chen’s NYCHRL claim, however, still relies principally on the idea that she was retaliated against because of her Affirmative Action Complaint; she has not identified any earlier time when she “opposed any practice forbidden under” the NYCHRL. Thus, she must show that Ca-lichman, Lesen, Murphy, and Paaswell engaged in some prohibited conduct and that their decision to do so was “caused at least in part by ... retaliatory motives.” Id. at 113; see also Brightman v. Prison Health Serv., 108 A.D.3d 739, 970 N.Y.S.2d 789, 789 (2d Dep’t 2013). Chen’s retaliation claim fails even under this broader provision. To begin, there is simply no evidence that Lesen or Murphy engaged in any conduct “reasonably likely to deter a person” from complaining about NYCHRL violations after Chen filed her Affirmative Action Complaint. See Melman, 946 N.Y.S.2d at 42 (noting that a defendant cannot “be deemed to have retaliated against plaintiff simply by denying that it was discriminating against him and confronting him with [his] professional lapses”). Nor has Chen presented facts from which a reasonable jury could conclude that Calichman’s advocacy against Chen’s reappointment or Paaswell’s rejection of her appeal were motivated, in part, by retaliation. As explained above, Calichman took note of comments about Chen’s “overaggressiveness and lack of tact” in her first year of teaching and, in his view, her confrontation with the Student and handling of the aftermath confirmed those concerns. Ca-lichman expressed those opinions in a professional evaluation long before Chen’s Affirmative Action complaint and reiterated the concerns when advocating against Chen’s reappointment. Cf. Mihalik, 715 F.3d at 116 (denying summary judgment when defendant “presented no evidence that anyone confronted [plaintiff] about [performance] problems” until plaintiff complained). Under these circumstances, the fact that Chen’s reappointment" }, { "docid": "8956457", "title": "", "text": "force during the time appellant filed his charges of age discrimination with GAO or with the PAB, or when he filed his two actions with the District Court.” See GAO Brief at 19. Even though it is true that 4 C.F.R. § 28.100 replaced 4 C.F.R. § 28.51(c), GAO ignores the fact that during the pendency of Chennareddy’s claim in the District Court, GAO Order 2713.2 and Regulation 4 C.F.R. § 28.51(c) applied. Consequently, we find that under GAO Order 2713.2 and 4 C.F.R. § 28.51(c) Chennareddy “need not exhaust administrative appeals to GAO or to the Board before filing suit in the Federal District Court.” 4 C.F.R. § 28.51(c). Furthermore, even though 4 C.F.R. § 28.100 superceded 4 C.F.R. § 28.51(c), GAO Order 2713.2, on which Chennareddy principally relies, remains in effect. Under GAO Order 2713.2 (regulations governing class actions), Chennareddy, upon receiving the GAO’s decision to reject his class action, was free “to file a civil action in an appropriate U.S. District Court.” GAO Order 2713.2 ch. 4, If 3-N. Thus, according to GAO’s own regulations, Chennareddy properly filed his action in the District Court after GAO rejected his class action complaint. Accordingly, GAO must apply its own regulations authorizing him to proceed in the District Court after giving the required notice of intent to sue. Our decision is based upon 4 C.F.R. § 28.51(c) and GAO Order 2713.2, the applicable GAO regulations at the time Chen-nareddy’s claims were pending in the District Court. We will not apply 4 C.F.R. § 28.100 retrospectively and will therefore not consider its application here. Although we generally apply a new regulation retrospectively on appeal as long as such application does not result in a manifest injustice, see Thorpe v. Housing Auth. of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969); Clark-Cowlitz Joint Operating Agency v. FERC, 826 F.2d 1074, 1081 (D.C.Cir.1987), cert. denied, 485 U.S. 913, 108 S.Ct. 1088, 99 L.Ed.2d 247 (1988), here we find no reason to apply 4 C.F.R. § 28.100 retrospectively as GAO has waived any argument it could have made for" }, { "docid": "9690926", "title": "", "text": "case, argues the PAB, is inadequately reasoned and ignores the FPM’s definition of a transfer as non-competitive. Largely because the GAO relies so heavily on the Oulvey case — which, even if it reaches the right result, is indeed conclusorily reasoned — the parties’ analysis sheds little light on the nature of Shaller’s appointment. The GAO asserts that Oulvey requires the conclusion that Shaller was selected from a certificate; the PAB, without truly joining issue, responds that Shaller was transferred. Neither party supplies a complete rationale for its position or fully responds to the other. As a result, we are left in an inscrutable labyrinth of civil service rules with precious little to guide proper disposition. We shall defer decision on these issues pending further consideration by the PAB. First, the Board must, on remand, expressly consider the MSPB’s Oulvey decision. Although the GAO overstates the alleged binding effect of MSPB precedent on the PAB, Congress did at least “expect[] . . . the Board [to] . .. refer to decisions of [executive] ... agencies for guidance.” House Report 6. To say that this constitutes a congressional “command to the Appeals Board to adopt the decisions of the MSPB,” Reply Brief for GAO 7, is inconsistent with the independent charter established for the PAB under the GAOPA. We do think, however, that Congress encouraged the PAB, at a minimum, to consider MSPB decisions and other executive agency precedent before deciding questions already settled in the executive personnel system. The PAB appears to have ignored that suggestion here, since it failed to give any express consideration to the Oulvey case, even though Oulvey was decided before both of the PAB’s decisions. Indeed, there is some evidence that the PAB may have given weight to the initial decision in Oulvey that was subsequently overturned by the full MSPB. Second, the Board must consider several additional questions that may aid our disposition of this issue. For example, there is the question whether Shaller was even eligible for non-competitive appointment, since, under 5 C.F.R. § 1.3(c) (1982), it appears that an employee does not" }, { "docid": "9690948", "title": "", "text": "required of the Board to adjudicate attorney’s fee matters. At oral argument, counsel for the GAO suggested that, rather than save attorney’s fee costs, 4 C.F.R. § 28.17(d), by providing government-sponsored legal counsel, violates the rule that attorney’s fee awards are available against the government only where there is clearly expressed statutory authorization. This argument is clever, but unavailing. Even if 4 C.F.R. § 28.17(d) arguably saves petitioners (who do not decline to be represented by the General Counsel) the cost of hiring counsel, that effect, obviously, does not draw funds from the fisc beyond those expended in the normal course on the General Counsel’s salary. Furthermore, this so-called “saving” is no different from that gained by an employee whose case is prosecuted by the General Counsel at the FLRA or NLRB. . The Board, in fact, considered designing its procedural regulations strictly on the institutional model of the executive branch, but decided not to do so. In explaining the structure chosen, the Board’s notice of final rulemaking pointed out that “[o]ne of the first policy decisions faced by the members of the [PAB] .. . was whether to adopt four separate procedures paralleling those of the executive branch or whether to combine some or all of the jurisdictional subjects into one procedure. The Board elected to create, to the maximum extent possible, one procedure.” 46 Fed.Reg. 35,476 (1981). . See supra text at p. 523. . See Concrete Materials of Georgia, Inc. v. NLRB, 440 F.2d 61, 67 (5th Cir.1971) (“[NLRB’s] General Counsel represents the public interest in preventing the interference to interstate commerce caused by unfair labor practices, and, at the same time, the private interest of the charging party to be free from the harm to his interests caused by unfair labor practices”); cf. Frazier v. MSPB, 672 F.2d 150, 163 (D.C.Cir.1982) (“There will, of course, be many instances in which the interests of the Special Counsel and of a particular employee converge.”). . One final point made by the GAO deserves brief mention. The GAO asserts that 4 C.F.R. § 28.17(d) “creates a blatant conflict of" }, { "docid": "8956446", "title": "", "text": "complaints of age discrimination with the GAO Civil Rights Office. Chen-nareddy and Carroll consolidated the two complaints and presented them to a hearing examiner who, on November 26, 1986, recommended that the Comptroller General of the United States (“Comptroller General”) certify the class. Pursuant to the United States General Accounting Office Operations Manual, Order 2713.2, Discrimination Complaint Processing in the United States General Accounting Office (effective Aug. 12, 1981) (“GAO Order 2713.2”), the Comptroller General reviewed Chennareddy’s complaint to determine whether to consider the complaint as a class action or as an individual complaint. The Comptroller General concluded that the putative class failed to meet the requirements for certification and therefore denied class certification on December 8, 1986. Chennareddy and Carroll appealed the decision to GAO’s Personnel Appeals Board (“PAB” or “Board”) on December 18, 1986. Chennareddy instituted his appeal in accordance with the PAB’s regulations authorizing an interlocutory appeal on the question of class certification. See GAO Order 2713.2; 4 C.F.R. § 28.45(b)(1) (1988). On November 23, 1987, the PAB, sitting en banc, denied Chennareddy’s motion for class certification and dismissed the petition because his allegations did not meet the class action requirements of commonality, typicality, and adequacy of representation as required by Fed.R.Civ.P. 23 and GAO regulations governing class actions. On November 25, 1987, GAO notified Chennareddy that its Civil Rights Office would continue administrative processing of his individual age discrimination claim. Chennareddy’s counsel, by letter dated December 2, 1987, to the Director of the Civil Rights Office, notified GAO that Chennar-eddy and Carroll would not pursue their discrimination complaints administratively. Chennareddy, therefore, requested that GAO dismiss his complaint and issue a final determination. GAO cancelled the complaint pursuant to GAO Order 2713.2 and notified Chennared-dy by letter dated December 10,1987, of its action. GAO terminated the administrative processing of Chennareddy’s complaint before rendering a decision on the merits. On December 14, 1987, Chennareddy’s counsel sent a letter of “Notice of Intent to Sue” to GAO’s Civil Rights Office and the PAB, stating that Chennareddy intended to seek a trial de novo in district court. On December 30," }, { "docid": "9690894", "title": "", "text": "[an independent] ... personnel management system,” H.R.Rep. No. 494, 96th Cong., 1st Sess. 4 (1979) [hereinafter cited as House Report ]. Second, Congress desired for employees of the GAO the same degree of legal protection accorded executive branch employees. Just prior to enactment of the GAO-PA, the executive personnel management system was overhauled by the Reform Act, which granted executive employees a host of new procedural and substantive rights. So that GAO employees could enjoy protections similar to those afforded other federal employees under the 1978 reform legislation, Congress rejected proposals which would have granted the GAO unfettered discretion to design a personnel system; instead, the lawmakers adopted a statute setting forth a comprehensive scheme generally modeled on the Reform Act. Congress’ chosen scheme, while explicitly incorporating many substantive rights from the Reform Act, does not replicate the Reform Act’s complex structure. At the core of the GAO personnel system is a single agency — the PAB — which carries out the combined responsibilities of the MSPB, the Special Counsel, the FLRA, and the EEOC. The House Report describes the role of the PAB as follows: The cornerstone of [the proposed legislation] ... is the creation of a GAO Personnel Appeals Board to handle appeals from such matters as adverse actions, prohibited personnel practices, union elections, determinations of bargaining units, unfair labor practices and discrimination appeals. In handling each of these types of cases, the GAO Personnel Appeals Board acts in the place of the Merit Systems Protection Board, the Federal Labor Relations Authority, or the Equal Employment Opportunity Commission, as applicable. The committee expects that the Board will refer to decisions of these agencies for guidance. The general counsel to the Personnel Appeals Board acts in the place of the Special Counsel to the Merit Systems Protection Board. In this way, the employees of the GAO retain all the rights enjoyed by employees in the executive branch, while, at the same time, the conflict of roles is eliminated. Id. at 5-6. Thus, Congress sought to solve the GAO’s conflict of roles problem by granting the GAO broad authority to" }, { "docid": "9690917", "title": "", "text": "and these proposals ultimately evolved into a “carefully drawn bill,” which — by establishing the PAB as a discrete, independent entity within the system — struck “a proper balance between the need for GAO to have its own flexible personnel management system and the need to preserve the essential employment rights of GAO staff members,” Senate Report 3. Under the concentric structure thus adopted, the Comptroller General and the PAB each necessarily pos sesses “wide discretion” granted by the GAOPA to contribute to the establishment of an independent personnel system. The Comptroller General has power to issue regulations governing matters within his sphere of jurisdiction, and the PAB has like authority. To grant the GAO, in effect, veto power over any PAB regulation “providing for employee appeals” or directing the General Counsel to “help the Board carry out its powers and duties,” would be patently inconsistent with the division of functions between the PAB and the GAO. Hence, the discretion granted by the GAO-PA to set up an independent personnel system was properly exercised by the PAB in this instance. d. “Comparable” Models. Even if the GAO’s “strict incorporation” theory were correct, the general counsel models established by the Reform Act — the MSPB’s Special Counsel and the FLRA’s General Counsel — would nevertheless permit the enforcement of employee rights through government counsel prosecution in adverse action cases. This court recently held in Frazier v. MSPB, 672 F.2d 150, 162 (D.C.Cir.1982), that in corrective action cases the Special Council is akin to “an ombudsman responsible for investigating and prosecuting violations of the [Reform] Act,” id., and is not an “employees’ advocate,” id. The Frazier court was not required to address directly the role of the Special Counsel in appeals cases; yet, the court recognized that, because “the Special Counsel [has] the right to ‘intervene or otherwise participate in any proceeding before the [MSPB] ...,’” id. at 163 n. 45 (quoting 5 U.S.C. § 1206(i) (Supp. V 1981)), “[a]n individual improperly discharged for whistleblowing ... could presumably seek the assistance of the Special Counsel in a Chapter 77 appeal ...,” id." }, { "docid": "8956461", "title": "", "text": "however, reversed its position before the Supreme Court and admitted that agency exhaustion is not required. Thus, the Supreme Court concluded that “the rulings in McGinty, Castro, and Purtill, and any other ruling to the same effect will remain outstanding and in conflict with Langford ” until challenged by a proper litigant. Stevens, 111 S.Ct. at 1568. “If this does not come about, then, because of the Government’s change-of-mind and new position, any legal significance of the conflict may simply fade away with the passage of time.” Id. at 1569. Although the Court did not decide whether exhaustion is required under the ADEA, the simple fact that the government changed its position in Stevens suggests that GAO’s argument here is inconsistent with the government’s new position. Moreover, the government’s “change-of-mind” in Stevens suggests that the decisions upon which GAO premised its exhaustion argument may have lost persuasive force. Id. at 1569. Additionally, GAO attempts to focus the Court’s attention on EEOC regulations in an effort to convince the Court that 29 C.F.R. §§ 1613.501-1613.521 (1988) apply to ADEA claims in the GAO. In this context, EEOC regulations do not apply to GAO because GAO is not a part of the executive branch. Moreover, because of this fact, the PAB replaced the EEOC in every respect in regards to GAO personnel actions. We stated in GAO v. GAO Personnel Appeals Bd., “[a]t the core of the GAO personnel system is a single agency — the PAB — which carries out the combined responsibilities of the MSPB, the Special Counsel, the FLRA, and the EEOC.” 698 F.2d at 523. GAO’s reliance upon the EEOC scheme in this case, therefore, is unavailing in light of the explicit language of GAO’s own regulations. We need not consider the general administrative exhaustion question under the ADEA addressed by the other circuits and raised by GAO in the present case. All of these cases deal with EEOC regulations governing ADEA claims. See, e.g., 29 C.F.R. § 1613.513 (1987). They do not ad dress the unique feature involved m Chen-nareddy’s claim, which is that GAO and the" }, { "docid": "23632237", "title": "", "text": "satisfy the higher burden of proof necessary to succeed on his withholding of removal claim, and denied that claim as well. The BIA also found that Chen had failed to establish eligibility for CAT relief, and ordered Chen removed to China. Chen timely filed a petition for review before this Court. DISCUSSION Standard of Review When the BIA issues an opinion that does not adopt the decision of the IJ to any extent, the BIA’s opinion “becomes the basis for judicial review of the decision of which the alien is complaining.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005) (citation omitted). We review factual findings, including adverse credibility determinations, under the substantial evidence standard, upholding them if they are supported by “reasonable, substantial and probative evidence in the record.” Id. (citation omitted). On the other hand, “if the issue on appeal involves the proper application of legal principles to the facts and circumstances of the individual case at hand, our review has been de novo.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (citations omitted). We will vacate and remand BIA decisions “that result from flawed reasoning or the application of improper legal standards.” Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir.2006); see also Secaidar-Rosales, 331 F.3d at 307 (“[U]sing an inappropriately stringent standard when evaluating an applicant’s testimony constitutes legal, not factual, error.”). Analysis For all appeals filed after September 25, 2002, the BIA is no longer permitted to engage in de novo review of an IJ’s factual findings. See 8 C.F.R. §§ 1003.1(d)(3)(i), 1003.3(f); see also In re S-H-, 23 I. & N. Dec. 462, 466 (B.I.A.2002) (“Under the new regulatory provisions, the Board will not engage in de novo review of findings of fact determined by an Immigration Judge in any case in which the appeal is filed on or after September 25, 2002.”). Rather, “[f]acts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i). Although the BIA cited" }, { "docid": "8956463", "title": "", "text": "PAB regulations establish a different regime with which the ADEA plaintiff must comply. See GAO Order 2713.2; 4 C.F.R. § 28.51(c). Consequently, we need address only the specific question of whether under GAO and PAB regulations a federal employee must completely exhaust administrative remedies once he has invoked the administrative procedures to redress an age discrimination claim. We conclude that under GAO regulations governing ADEA claims at the time Chennareddy brought his claim in the District Court, a GAO complainant need not exhaust agency remedies before suing in the District Court. Furthermore, GAO cannot seek refuge in regulations promulgated by the EEOC or other executive branch agencies. Rather, GAO is bound by its own regulations governing civil action discrimination complaints. Black v. Romano, 471 U.S. 606, 621-22 & n. 18, 105 S.Ct. 2254, 2262-63 & n. 18, 85 L.Ed.2d 636 (1985) (government “cannot change the rules in the middle of the game”); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954) (government bound by its own regulations); Esch v. Yeutter, 876 F.2d 976, 991 & n. 163 (D.C.Cir.1989) (“agency is legally bound to respect its own regulations, and commits procedural error if it fails to abide [by] them”). Here, GAO is bound by its ADEA regulations, GAO Order 2713.2, and 4 C.F.R. § 28.51(c). III. CONCLUSION The District Court erred in dismissing Chennareddy’s claims in Case 87-3538 and Case 88-0577 as these claims complied with GAO regulations, which did not require Chennareddy to exhaust GAO remedies before filing suit in District Court. We therefore reverse the District Court’s order and remand for action consistent with this opinion. So ordered. . We do not consider the complaints of the other co-plaintiffs here as they have not sought to become parties to this action. . Although the Court of Appeals docketing statements in Case Nos. 89-5408 and 89-5409 identify Chennareddy, Roger Carroll, and all others similarly situated as appellants, only Chennar-eddy’s name appears on the respective notices of appeal in this consolidated case. Because neither Roger Carroll nor any other party was identified in" } ]

[ { "docid": "11544884", "title": "", "text": "suggest a contrary conclusion are that Jordan was in custody, that he had been told that it would be best to cooperate, and that after the oral consent was given but before the written consents were executed one agent said to another that a warrant could be obtained in any event. Even if this last statement were held to be coercive, but see Gatterdam v. United States, 5 F.2d 673 (6th Cir.1925), it would not vitiate the prior oral consent. The fact that Jordan was in custody is not itself sufficient to render the consent involuntary. See Gorman v. United States, 380 F.2d 158, 163-64 (1st Cir.1967). See also United States v. Paradise, 253 F.2d 319 (2d Cir.1958); Annot., 9 A.L.R.3d 858 (1966). The trial court recognized that the government had a heavy burden of proving voluntary consent, see United States v. Como, 340 F.2d 891 (2d Cir. 1965), but found that the burden had been met. We find no reason to disagree. See United States v. Bracer, 342 F.2d 522, 524-25 (2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 427, 15 L.Ed.2d 359 (1965). The evidence as to the abandonment of the apartment at 8 Symphony Road is in rather close balance. It is clear that Jordan was in the process of moving from Symphony Road to 90 Gainesbor-ough Street. The only question is whether he had fully abandoned the Symphony Road apartment before December 19th, the date of the search. The FBI agents conducting the search of the Symphony Road apartment found that the rear door of the apartment was unlocked. There were no personal effects in the apartment. Jordan’s clothing, musical instruments, dog, and other personal belongings were found in the Gainesborough Street apartment. The superintendent of the Symphony Road apartment testified that rent had been paid only through December 12, a week before the search. On the other hand, there was testimony that the Gainesborough Street apartment was not habitable until after the 19th because the bathroom was undergoing major repairs. And Jordan testified that he had slept in the Symphony Road apartment on the" } ]

[ { "docid": "8023402", "title": "", "text": "that “if you propose to offer testimony I suggest that you take the oath and witness stand” be error, we deem it to be minor and inconsequential error without prejudice to the appellant, particularly in light of the trial court’s instructions referred to below. The situation here is not unlike that presented to this court in United States v. Warner, 8 Cir., 1970, 428 F.2d 730, cert. denied, 1970, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191. In Warner, after an improper argument by appellant, who was acting pro se, the trial judge said, “I think you should ask questions. If you want to testify later on you may.” Additionally, after an improper closing argument by Warner, the prosecuting attorney said, “Most of what you heard in the closing argument on behalf of Mr. Warner and by Mr. Warner, did you hear it from the witness stand?” True, as Judge Gibson noted in his opinion, 428 F.2d at 738: “Adverse comments by judge or prosecutor upon a defendant's failure to take the stand is a violation of the defendant’s rights under the Fifth Amendment. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).” We agree, however, with the Fifth Circuit wherein it said in Davis v. United States, 5 Cir., 1966, 357 F.2d 438, 441, cert. denied, 1966, 385 U.S. 927, 87 S.Ct. 284, 17 L.Ed.2d 210: “The facts and circumstances of each case must be carefully analyzed to determine ‘whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955); see United States [ex rel. D’Ambrosio] v. Fay, 349 F.2d 957 (2d Cir. 1965).” See United States v. Porter, 8 Cir., 1971, 441 F.2d 1204, 1216, cert. denied United States v. Harrison, 1971, 404 U.S. 911, 92 S.Ct. 38, 30 L.Ed.2d 184; United States v. Lepiscopo, 5 Cir., 1970, 429 F.2d 258, cert. denied, 1970, 400 U.S. 948, 91 S.Ct. 255," }, { "docid": "3655473", "title": "", "text": "to the undisputed findings of fact of the district court, Candella said, “ ‘Some of them are there,’ pointing to a carton about five feet or so from where he was standing, and Mr. Wessler with Mr. Dugan looked into the box and saw that it did have guns, which Mr. Duggan [sic] then took under his control, and Mr. Wessler turned back to Mr. Candella and asked whether he had any others, and Mr. Can-della, half turning, indicated a desk or other piece of furniture some five,Jeet away from him in another direction, and Mr. D’Atri went there and opened a drawer and found additional firearms in it. 29 firearms or thereabouts were found, all told. Apparently 10 or so in the desk and 19 or so in the carton.” At approximately 8 :30 A.M. Candella was taken in a Government vehicle to the A.T.F. office. There, after some discussion of the facts, Candella signed the statement which the district court ordered suppressed. Candella was then taken to the office of the United States Attorney for the Eastern District of New York where he arrived at approximately 11:00 A.M. Counsel was then obtained for him and he was arraigned at approximately 11:30 A.M. II. The Suppression of the Handguns Candella’s conduct when he was arrested constituted consent to the seizure of the handguns. See United States v. Rothberg, 460 F.2d 223 (2d Cir. 1972); United States v. Gaines, 441 F.2d 1122 (2d Cir.), vacated and remanded on other grounds, 404 U.S. 878, 92 S.Ct. 223, 30 L.Ed.2d 159 (1971). Candella, after being informed of his rights, pointed to the exact spots where the guns were located and told the officers where they were. Here, as in Roth-berg, there is “no evidence ... of coercion or other circumstances that would render the consent invalid.” 460 F.2d at 224. Consent was “freely and voluntarily given.” See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L.Ed.2d 797 (1968); United States v. Fernandez, 456 F.2d 638 (2d Cir. 1972). “[T]he mere fact that a suspect is under arrest" }, { "docid": "22580172", "title": "", "text": "States v. Berenguer, 562 F.2d 206, 210 & n.5 (2d Cir. 1977); United States v. DiStefano, 555 F.2d 1094, 1100 n.5 (2d Cir. 1977); United States v. Mejias, 552 F.2d 435, 443-45 (2d Cir. 1977), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977); Rodriguez v. Butler, 536 F.2d 982 (2d Cir.), cert. denied, 429 U.S. 943, 97 S.Ct. 362, 50 L.Ed.2d 313 (1976); United States v. Gonzales, 483 F.2d 223, 224-25 & n.2 (2d Cir. 1973); United States v. Fernandez, 480 F.2d 726, 740 n.20 (2d Cir. 1973); United States v. Mapp, 476 F.2d 67, 74 (2d Cir. 1973); Williams v. United States, 463 F.2d 1183, 1184-85 (2d Cir.), cert. denied, 409 U.S. 967, 93 S.Ct. 299, 34 L.Ed.2d 232 (1972); United States v. Wilkes, 451 F.2d 938, 940 n.3 & n.6 (2d Cir. 1971); United States v. Manning, 448 F.2d 992, 998-99 (2d Cir.) (en banc), cert. denied, 404 U.S. 995, 92 S.Ct. 541, 30 L.Ed.2d 548 (1971); United States ex rel. Cardaio v. Casscles, 446 F.2d 632, 637-38 (2d Cir. 1971); United States v. Gaines, 441 F.2d 1122 (2d Cir.), vacated and remanded, 404 U.S. 878, 92 S.Ct. 223, 30 L.Ed.2d 159 (1971), on remand, aff’g on other grounds, 460 F.2d 176, cert. denied, 409 U.S. 883, 93 S.Ct. 172, 34 L.Ed.2d 139 (1972); United States v. Pino, 431 F.2d 1043, 1044-45 (2d Cir. 1970), cert. denied, 402 U.S. 989, 91 S.Ct. 1675, 29 L.Ed.2d 154 (1971); United States v. Lozaw, 427 F.2d 911, 914-15 (2d Cir. 1970); id. at 917- (Lumbard, C. J., and Hays, J., concurring); United States v. Llanes, 398 F.2d 880, 883 (2d Cir. 1968), cert. denied, 393 U.S. 1032, 89 S.Ct. 647, 21 L.Ed.2d 576 (1969); United States v. McMillan, 368 F.2d 810 (2d Cir. 1966), cert. denied, 386 U.S. 909, 87 S.Ct. 856, 17 L.Ed.2d 783 (1967); United States v. Conti, 361 F.2d 153 (2d Cir. 1966), vacated on other grounds, 390 U.S. 204, 88 S.Ct. 899, 19 L.Ed.2d 1035 (1968); United States v. Monticallos, 349 F.2d 80 (2d Cir. 1965); United States v. Hall, 348 F.2d 837," }, { "docid": "8859015", "title": "", "text": "supra 409 U.S. at 198-99, 93 S.Ct. 375. At least three circuits have adopted a different rule for post-Stovall due process cases, one which shifts the burden of proof to the government after the defendant shows that the identification witnesses were exposed to unnecessarily suggestive procedures. See Brathwaite v. Manson, 527 F.2d 363 (2nd Cir. 1975); United States v. Sanders, 156 U.S.App.D.C. 210, 479 F.2d 1193, 1198 (1973); Kimbrough v. Cox, 444 F.2d 8 (4th Cir. 1971). The Seventh Circuit, on the other hand, has refused to adopt a different rule for post-Stovall cases in a well-reasoned opinion by Judge Stevens (now Mr. Justice Stevens). United States ex rel. Kirby v. Sturges, 510 F.2d 397 (7th Cir.), cert. denied, 421 U.S. 1016, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975). . Since there is no evidence that the police ever requested Sanchell to participate voluntarily in a lineup before they resorted to the February 8 showup at the arraignment, we need not determine whether the police could have required petitioner to participate without his consent by arrest or otherwise at that time. We note, however, that Sanchell was at least technically in police custody on the unrelated robbery charge. Wade, Gilbert and Kirby presume that the police have the power to require persons in custody (and perhaps others as well) to appear' in lineups regardless of whether there is probable cause to arrest the person on the charge for which the lineup is being held. This is necessarily so since a lineup must contain not only the police “suspect” if they have one, but also several “fillers.” The problem of how to display a suspect to witnesses for identification before the police have probable cause to arrest him has been considered in United States v. King, 461 F.2d 53, 55 (8th Cir. 1972); United States v. Callahan, 439 F.2d 852, 865-66 (2nd Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 56, 30 L.Ed.2d 54 (1971); United States v. Greene, 139 U.S.App. D.C. 9, 429 F.2d 193, 195-97 (1970); Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104, 1106 (1968). ." }, { "docid": "320028", "title": "", "text": "we think the defendant was guilty of more than just a simple agreement to buy stolen goods. First, the negotiations between the defendant, Kramer, and Messenger were complex. Second, the defendant’s purchase was contingent upon whether he could find a buyer. Third, it was the defendant who arranged for the interstate transportation of the stolen goods. Finally, there was sufficient evidence to support the inference that the defendant had collaborated with Kramer to make the transactions, and his part in the transaction, look legal on paper. Given these facts, we think that the defendant’s characterization of himself as a simple purchaser of stolen goods is incorrect. See United States v. Greer, 467 F.2d 1064, 1070 (7th Cir.1972), cert, denied, 410 U.S. 929, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973); United States v. Skillman, 442 F.2d 542, 547-48 (8th Cir.), cert, denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971). The government’s characterization of the defendant’s involvement as that of a “middleman” is more accurate. We think there was sufficient evidence to establish more than a mere buyer-seller arrangement, and thus sufficient evidence to support the jury’s verdict on the conspiracy count. . 18 U.S.C. § 371. . 18 U.S.C. § 659. . 18 U.S.C. § 2314. . In United States v. Isaacs, 493 F.2d 1124, 1163 (7th Cir.), cert, denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974), the trial court gave the following instruction: If there are conflicts in the statements of different witnesses, it is your duty to reconcile it if you can, for the law presumes that every witness is sworn to tell the truth, but if you, cannot reconcile them, the law makes you the sole and exclusive judges of the credibility of the witnesses, and the weight to be given their testimony. (Emphasis added.) In United States v. Knaack, 409 F.2d 418, 422 (7th Cir.), cert, denied, 396 U.S. 831, 90 S.Ct. 87, 24 L.Ed.2d 83 (1969), the trial court gave an instruction on witness credibility, which adverted to an assumption or presumption that witnesses tell the truth. In United States" }, { "docid": "2805592", "title": "", "text": "these facts and, therefore, that the gun which was illegally seized cannot form the basis of his prosecution. While we agree that voluntary consent to search cannot be lightly inferred, United States ex rel. Lundergan v. McMann, 417 F.2d 519 (2d Cir. 1969), Como does not require reversal here. In Como, the police officers deceived and coerced the defendant into disclosing that he had narcotics in his room. Defendant had claimed to be cooperating with other agents and apparently believed that a call to them would clear him. This court held that the police officers induced defendant first to take them up to his room and then to disclose and turn over the narcotics by leading him to believe that the phone call would be made. In fact, it was not. In this case, however, there was no unkept promise. While the officers obtained admission into the room by asking about the Thunderbird, they had a right to make that inquiry. Moreover, the facts developed at the hearing support the conclusion that the officers did not deceive appellant into opening the attache case. Perhaps we might have reached a different conclusion as to consent were we the original triers of fact. But we cannot say that the trial court’s factual findings, which led to the ultimate finding of consent, were clearly erroneous. United States v. Bracer, 342 F.2d 522 (2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 427, 15 L.Ed.2d 359 (1965). Therefore, we affirm the denial of the motion to suppress. The case is remanded for further proceedings consistent with this opinion. . After DuShane’s indictment but before his conviction, the Federal Firearms Act was repealed by the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, § 906, 82 Stal. 234. The same crime is now covered by 18 U.S.C. App. § 1202(a)(1) (1969). . Appellant in fact received a sentence of three years from the Oklahoma judge. . There appears to be some question whether in 1959 the statute included the word “financially.” In 1961 and 1967, the statute read “and is" }, { "docid": "23526612", "title": "", "text": "Terefenco went upstairs and found a fully loaded .45 automatic pistol and 2 clips hidden between the mattress and box spring of a bed in a room adjacent to that where Fred had been arrested — a maneuver which the Government suggests might have been performed during the agents’ ten minutes wait before Mrs. Fernandez admitted them to the house. Fred later admitted at FBI headquarters that the gun was his. Mrs. Fernandez signed a form acknowledging what items were being seized. Expectably Mrs. Fernandez gave a different version. She claimed that she was afraid when the agents drew their guns; that she asked them to produce a search warrant; that they said it was not necessary; that she let them into the house for that reason; and that she had never consented to a search. On this appeal only the search for and seizure of the gun is seriously contested. If the judge believed the agents, the Government satisfied its burden, which we now take to be only of meeting the preponderance of the evidence test, see Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, (1972); contrast United States v. Bracer, 342 F.2d 522, 524 (2 Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 427, 15 L. Ed.2d 359 (1965), of proving that Mrs. Fernandez’ consent was “freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Even on her own version, any effect of the pulling of the guns, itself not an unreasonable response to the vicious dogs, had been dissipated by the lapse of time before the consent was sought. Nothing said or done by the agents indicated any intention to use force, although they lawfully could have in order to make the arrest if Mrs. Fernandez had refused to permit it. Determination of credibility was for the judge who saw and heard the witnesses. II. The Validity of the Indictment. Little need be said with respect to appellant’s contention that the indict ment was invalid because no eyewitnesses to the robbery were called" }, { "docid": "297309", "title": "", "text": "v. Thornton, 147 U.S.App.D.C. 114, 117, 454 F.2d 957, 960 (1971). Hearsay may support a grand jury indictment. E. g., Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956); United States v. Callahan, 439 F.2d 852, 860 (2d Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 56, 30 L.Ed.2d 54 (1971); United States v. Aloisio, 440 F.2d 705, 707-708 (7th Cir.), cert. denied, 404 U.S. 824, 92 S.Ct. 49, 30 L.Ed.2d 51 (1971); United States v. Daddano, 432 F.2d 1119, 1125 (7th Cir. 1970), cert. denied, 402 U.S. 905, 91 S.Ct. 1366, 28 L.Ed.2d 645 (1971) . Until recently, the question whether hearsay was admissible in preliminary hearings remained open with us, see Washington v. Clemmer, 119 U.S.App.D.C. 216, 339 F.2d 715, following remand, 119 U.S.App.D.C. 226, 229, 339 F.2d 725, 728 (1964); Ross v. Sirica, supra note 55, 127 U.S.App.D.C. at 18, 330 F.2d at 565; Howard v. United States, 128 U.S.App.D.C. 336, 341, 389 F.2d 287, 292 (1967), as was the question whether a finding of probable cause to hold the accused to answer may be predicated on hearsay evidence alone, e. g., Washington v. Clemmer, supra, 119 U.S.App.D.C. at 220, 339 F.2d at 719. See, however, id. at 225-226, 339 F.2d at 724-725 (statement of Judge [now Chief Justice] Burger). Now, however, Fed.R.Crim.P. 5.1(a) provides that the finding “may be based upon hearsay evidence in whole or in part.” See note 54, supra. . We cannot accept the argument that Coleman v. Alabama, supra note 69, establishes the validity of that contention. Coleman vindicates the Sixth Amendment right to counsel at preliminary hearings, see Part II(B), supra. But Coleman did not touch the issue of right to confrontation at such hearings, and other decisions speak to the right of confrontation at trial. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); California v. Green, supra note 78; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). As stated in text, we do not reach the question on this appeal. . Constitutional questions are" }, { "docid": "23526613", "title": "", "text": "evidence test, see Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, (1972); contrast United States v. Bracer, 342 F.2d 522, 524 (2 Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 427, 15 L. Ed.2d 359 (1965), of proving that Mrs. Fernandez’ consent was “freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Even on her own version, any effect of the pulling of the guns, itself not an unreasonable response to the vicious dogs, had been dissipated by the lapse of time before the consent was sought. Nothing said or done by the agents indicated any intention to use force, although they lawfully could have in order to make the arrest if Mrs. Fernandez had refused to permit it. Determination of credibility was for the judge who saw and heard the witnesses. II. The Validity of the Indictment. Little need be said with respect to appellant’s contention that the indict ment was invalid because no eyewitnesses to the robbery were called before the grand jury. Despite some earlier statements that might be taken to indicate a more drastic attitude, this court’s present position with respect to indictments based on hearsay is that stated in United States v. Leibowitz, 420 F.2d 39 (2 Cir. 1969); United States v. Rosenstein, 434 F.2d 640 (2 Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L. Ed.2d 825 (1971); United States v. Catalano, 439 F.2d 1100 (2 Cir.), cert. denied, 404 U.S. 825, 92 S.Ct. 56, 30 L.Ed. 2d 53 (1971); and United States v. Olsen, 453 F.2d 612 (2 Cir. 1972). The grand jury had a considerable quantity of non-hearsay evidence — the surveillance photographs of the robber wearing a dark pea jacket; Fernandez’ post-arrest photograph; and Sweeney’s testimony about the search and seizure. The only hearsay was the agent’s statement that three confidential informants had told him that Fernandez was one of the robbers shown in the surveillance photographs and that two eyewitnesses had said the robber used a .45 automatic pistol. While we see no" }, { "docid": "4176877", "title": "", "text": "it. In doing so he authorized Agent Derkasch to search the jacket for the requested identification. The discovery of the counterfeit bills was incidental to this authorized search. Gaines “need not have had a positive desire that the search be conducted in order for his consent to have been voluntary and effective.” United States v. Thompson, 356 F.2d 216, 220 (2d Cir. 1965), cert. denied, 384 U.S. 964, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966). The facts in the case at bar are similar to those in Gladden v. Frazier, 388 F.2d 777, 783 (9th Cir. 1968), aff’d sub nom. Frazier v. Culp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), where the search was held to have been based on consent. In any event “the finding whether the consent was voluntarily given is a finding of fact that should not be lightly overturned by the appellate court.” United States v. Bracer, 342 F.2d 522, 524 (2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 427, 15 L.Ed.2d 359 (1965); United States v. Cachoian, 364 F.2d 291, 292 (2d Cir. 1966), cert. denied, 385 U.S. 1029, 87 S.Ct. 757, 17 L.Ed.2d 676 (1967). The trial court found that the government met its admittedly heavy burden of proving that Gaines consented to the search and we have no reason to disagree. See United States v. Jordan, 399 F.2d 610, 614 (2d Cir.), cert. denied, 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 469 (1968). Not only is this finding not “clearly erroneous * * * [but] it is reasonable and logical in the light of the evidence.” United States v. Curiale, 414 F.2d 744, 748 (2d Cir.), cert. denied, 396 U.S. 959, 90 S.Ct. 433, 24 L.Ed.2d 424 (1960). We therefore affirm appellant’s conviction." }, { "docid": "19367106", "title": "", "text": "“the interests of justice” required a new trial. It is axiomatic that, absent exceptional circumstances, issues of witness credibility are to be decided by the jury, not the trial judge. United States v. Muskovsky, 863 F.2d 1319, 1322 (7th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1345, 103 L.Ed.2d 813 (1989); United States v. D’Antonio, 801 F.2d 979, 982 (7th Cir.1986). In general, conflicting testimony or a question as to the credibility of a witness are not sufficient grounds for granting a new trial. United States v. Indelicato, 611 F.2d 376, 387 (1st Cir.1979); Marshall v. United States, 436 F.2d 155, 156 n. 1 (D.C.Cir.1970). Where a witness’ testimony is such that reasonable men could not have believed the testimony, however, then exceptional circumstances are present and the district court may take the testimony away from the jury. Holland v. Allied Structural Steel Co., Inc., 539 F.2d 476, 483 (5th Cir.1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1136, 51 L.Ed.2d 557 (1977). The exception is an extremely narrow one, however, and can be invoked only where the testimony contradicts indisputable physical facts or laws. Zollman v. Symington Wayne Corporation, 438 F.2d 28, 31 (7th Cir.), cert. denied, 404 U.S. 827, 92 S.Ct. 59, 30 L.Ed.2d 55 (1971); United States v. Smith, 592 F.Supp. 424, 441 (E.D.Va.1984), vacated on other grounds, 780 F.2d 1102 (4th Cir.1985). In this case, the district court believed that it had erred in failing to invoke this exception and keep Arens’ testimony from the jury. We do not agree because we find that the exception, which is extremely narrow, was not applicable to this case. Indeed, we believe that it would have been an abuse of discretion had the district court excluded Arens’ testimony. There is no doubt that Arens’ credibility was subject to strong attack. The defense effectively showed that Arens was lying when he stated that he did not work at A Apple in the spring of 1984. The defense also submitted substantial evidence to show that Arens did not work for the defendants at the time he allegedly overheard their incriminating" }, { "docid": "11444328", "title": "", "text": "inducement element of entrapment. The instructions given by the court properly instructed the jury on the elements of entrapment necessary to decide the case. Hampton v. United States, supra; United States v. Russell, supra; United States v. Griffin, 434 F.2d 978, 981-982 (9 Cir. 1970), cert. denied, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160, reh. denied, 404 U.S. 877, 92 S.Ct. 27, 30 L.Ed.2d 124 (1971). IV. Perjury [H] Sheen testified that prior to the transaction involved in this case, he made trips to Charlotte, North Carolina and Daytona, Florida with Mummert to attend stock car races, and that during these trips drugs and money, in which Reynoso was involved, were exchanged. The trip to Charlotte was admitted, but Sheen’s testimony with respect to the drug transactions was denied by Mummert and several other witnesses. Sheen testified that Reynoso also made the trip to Daytona. Mummert and Reynoso, supported by the testimony of other witnesses, denied that this trip was ever made. Mummert now contends that Sheen’s testimony was perjury which was severely prejudicial. “Before a sentence may be vacated on the ground of perjured testimony, the movant must show that the testimony was perjured and that the prosecuting officials knew at the time such testimony was used that it was perjured.” Marcella v. United States, 344 F.2d 876, 880 (9 Cir. 1965), cert. denied, 382 U.S. 1016, 86 S.Ct. 630, 15 L.Ed.2d 531 (1966). Although the record indicates that Sheen’s testimony was perjured, there is no evidence that the Government knowingly used the false testimony. Moreover, this is not a case where the defendants learned subsequent to trial that perjured testimony had been offered by the prosecution. Here appellants’ counsel knew well in advance of the trial what Sheen had told the agents and what his testimony would be with respect to the alleged trips. Appellants were fully prepared to rebut Sheen’s testimony and thereby impeach his credibility. The alleged perjury was fully explored at the trial. Under the circumstances we find no prejudice. It concerned events which occurred before any participation by Mummert in the heroin" }, { "docid": "7968994", "title": "", "text": "the subject matter of his statement despite a court order to do so” is considered to be “unavailable” under Rule 804(a)(2), there was no such order with respect to the question at issue during Hall’s direct testimony. . Whether or not this is the case is open to dispute. Under Connecticut law, a nollied charge may be reopened by the prosecution within thirteen months. See v. Gosselin, 133 Conn. 158, 161, 48 A.2d 560 (1946). Therefore, it may be argued, on the one hand, that Hall risked self-incrimination on the charges of robbery and burglary which had been nollied pursuant to the plea bargain. See, United States v. Yurasovich, 580 F.2d 1212, 1218 (3d Cir. 1978) (1979) (“if the witness is still subject to prosecution for other crimes which his testimony might tend to reveal, the privilege remains”). Alternatively, it might be contended that Hall would be entitled to “specific performance” of his plea bargain agreement, under which the substantive counts would be dismissed. See United States v. Rocco, 587 F.2d 144, 148 n. 12 (3d Cir. 1978) citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1972). . In Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), the Supreme Court held that the declarant need not specifically affirm a prior statement as his in order to satisfy Confrontation Clause requirements. In Nelson, the declarant denied making the extrajudicial statement attributed to him, but was available to testify as to the underlying facts. Whether the declarant (1) denies having made the extrajudicial statement, United States v. Ballentine, 410 F.2d 375, 376-77 (2d Cir. 1969), cert. denied, 397 U.S. 928, 90 S.Ct. 935, 25 L.Ed.2d 107 (1970); United States v. Peterson, 435 F.2d 192, 195-96 (7th Cir. 1970), cert. denied, 403 U.S. 907, 91 S.Ct. 2212, 29 L.Ed.2d 683 (1971); (2) admits having made the statement, but denies its truth; United States ex rel. Pugach v. Mancusi, 441 F.2d 1073, 1075 (2d Cir.), cert. denied, 404 U.S. 849, 92 S.Ct. 156, 30 L.Ed.2d 88 (1971); or (3) claims an inability to" }, { "docid": "297308", "title": "", "text": "F.2d 978, 980 (1949); Hammond v. Hull, 76 U.S.App.D.C. 301, 303, 131 F.2d 23, 25 (1942), cert. denied, 318 U.S. 777, 63 S.Ct. 830, 87 L.Ed. 1145 (1943). . 26 U.S.C. § 4742(a) (1964), which was since repealed by Pub.L. No. 91-513, tit. III, § 1101(b)(3)(A), 84 Stat. 1291, 1292 (1970), which, however, left the prosecution unaffected. 84 Stat. 1294 (1970). . “In all criminal prosecutions, the accused shall enjoy the right to . be confronted with the witnesses against him . . . .” U.S.Const, amend. VI. . The argument, as we understand it, is not that hearsay must be as totally excluded from preliminary hearings as it is from trials, but seems rather to be that the elements of probable cause dependent upon eyewitness observations cannot be established on a wholly hearsay basis. “Credible” hearsay may underlie an arrest warrant. E. g., United States v. Harris, 403 U.S. 573, 579, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Whiteley v. Warden, 401 U.S. 560, 567, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); United States v. Thornton, 147 U.S.App.D.C. 114, 117, 454 F.2d 957, 960 (1971). Hearsay may support a grand jury indictment. E. g., Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956); United States v. Callahan, 439 F.2d 852, 860 (2d Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 56, 30 L.Ed.2d 54 (1971); United States v. Aloisio, 440 F.2d 705, 707-708 (7th Cir.), cert. denied, 404 U.S. 824, 92 S.Ct. 49, 30 L.Ed.2d 51 (1971); United States v. Daddano, 432 F.2d 1119, 1125 (7th Cir. 1970), cert. denied, 402 U.S. 905, 91 S.Ct. 1366, 28 L.Ed.2d 645 (1971) . Until recently, the question whether hearsay was admissible in preliminary hearings remained open with us, see Washington v. Clemmer, 119 U.S.App.D.C. 216, 339 F.2d 715, following remand, 119 U.S.App.D.C. 226, 229, 339 F.2d 725, 728 (1964); Ross v. Sirica, supra note 55, 127 U.S.App.D.C. at 18, 330 F.2d at 565; Howard v. United States, 128 U.S.App.D.C. 336, 341, 389 F.2d 287, 292 (1967), as was the question whether a finding of probable" }, { "docid": "4176876", "title": "", "text": "we hold that Gaines consented to the search which produced the two counterfeit bills. Although consent to a search should not be inferred lightly, United States ex rel. Lundergan v. McMann, 417 F.2d 519, 521 (2d Cir. 1969); United States v. Como, 340 F.2d 891, 893 (2d Cir. 1965); United States v. Viale, 312 F.2d 595, 601 (2d Cir.), cert. denied, 373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199 (1963), still “the search and seizure in each case must stand or fall on its own special facts,” United States v. Dornblut, 261 F.2d 949, 950 (2d Cir. 1958), cert. denied, 360 U.S. 912, 79 S.Ct. 1298, 3 L.Ed.2d 1262 (1959). The facts of the present ease show a consent which was “unequivocal, specific, and intelligently given.” United States v. Smith, 308 F.2d 657, 663 (2d Cir. 1962), cert.0 denied, 372 U.S. 906, 83 S.Ct. 717, 9 L.Ed.2d 716 (1963). The evidence establishes that Gaines, in answer to the request for identification, pointed to his jacket and said that the identification could be found in it. In doing so he authorized Agent Derkasch to search the jacket for the requested identification. The discovery of the counterfeit bills was incidental to this authorized search. Gaines “need not have had a positive desire that the search be conducted in order for his consent to have been voluntary and effective.” United States v. Thompson, 356 F.2d 216, 220 (2d Cir. 1965), cert. denied, 384 U.S. 964, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966). The facts in the case at bar are similar to those in Gladden v. Frazier, 388 F.2d 777, 783 (9th Cir. 1968), aff’d sub nom. Frazier v. Culp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), where the search was held to have been based on consent. In any event “the finding whether the consent was voluntarily given is a finding of fact that should not be lightly overturned by the appellate court.” United States v. Bracer, 342 F.2d 522, 524 (2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 427, 15 L.Ed.2d 359 (1965); United States" }, { "docid": "23162645", "title": "", "text": "disclosed that there was no such apartment. . 21 U.S.C. § 879, enacted in 1970, authorizes forcible official entry into a dwelling, during the day or night, to search for narcotics, but only if the entry is pursuant to a warrant. Since no such warrant was secured in this case, the statute is inapplicable. . The case was argued before the Supreme Court on October 10, 1972. One of the issues considered was whether the government must substantiate verbal consent to search an automobile by a demonstration that the consent was given with knowledge that it could be withheld. 41 U.S. L.W. 3237 (1972). . In Gorman, supra, the Court held that consent was voluntarily given when the accused, who had been arrested, agreed to a search after being asked whether he would object. The Court noted, however, that the accused had twice been warned that he need not answer any questions. See also, United States v. Hsu, 424 E.2d 1286 (2 Cir. 1970) cert. denied, 402 U.S. 982, 91 S.Ct. 1643, 29 L.Ed.2d 148 (1971). . United States v. Gaines, 441 F.2d 1122 (2 Cir.), cert. granted, judgment vacated and remanded, 404 U.S. 878, 92 S.Ct. 223, 30 L.Ed.2d 159 (1971), on remand, 460 F.2d 176 (1972), is not to the contrary. There too, police, four in number, entered a dwelling in the early hours of the morning after breaking down the apartment door. One of the officers identified himself to Gaines, and informed him of a complaint against him, for passing counterfeit bills. A second officer identified himself to Gaines and asked Gaines for identification. Gaines pointed to a jacket resting on a coat rack approximately ten feet away, clearly visible from where he was standing, and said, “It is in my jacket.” The officer reached into a pocket and discovered two counterfeit bills that were admitted in evidence at Gaines’s trial. The Court, concluding that “each case must stand or fall on its own special facts,” 441 F.2d at 1123, held that Gaines had consented to the search of his jacket. The facts in Gaines diverge in" }, { "docid": "7661231", "title": "", "text": "petit larceny and, on August 8, 1968, was given an unconditional discharge. . Cf. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). . United States ex rel. Ross v. McMann, 409 F.2d 1016, 1021 (2d Cir. 1969), vacated on other grounds, sub nom. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). . United States ex rel. Rosen v. Follette, 409 F.2d 1042, 1045 (2d Cir. 1969), cert. denied, 398 U.S. 930, 90 S.Ct. 1822, 26 L.Ed.2d 93 (1970) ; United States ex rel. Brooks v. McMann, 408 F.2d 823, 826 (2d Cir. 1969) ; United States ex rel. Brock v. LaVallee, 306 F.Supp. 159, 162 (S.D.N.Y.1969). . This omission is all the more glaring since it appears petitioner has been in communication with the attorney, who submitted a letter which does not touch on this issue of advice. (Ex. 3). . McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). . H.R. 3 (July 2, 1968). . See note 40 supra. . Cf. Dukes v. Warden, 406 U.S. 250, 257, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972) (Stewart, J., concurring) ; Santobello v. New York, 404 U.S. 257, 267-268, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (Marshall, J., concurring and dissenting). . United States ex rel. Rosa v. Follette, 395 F.2d 721, 726 (2d Cir.), cert. denied, 393 U.S. 892, 89 S.Ct. 216, 21 L.Ed.2d 172 (1968) ; United States ex rel. Scott v. Mancusi, 429 F.2d 104, 110 (2d Cir. 1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1385, 28 L.Ed.2d 651 (1971) ; United States ex rel. Best v. Fay, 239 F.Supp. 632 (S.D.N.Y.1965), aff’d, 365 F.2d 832 (2d Cir. 1966), cert, denied, 386 U.S. 998, 87 S.Ct. 1319, 18 L.Ed.2d 347 (1967). . Cf. United States ex rel. Best v. Fay, 239 F.Supp. 632, 634-635 (S.D.N.Y.1965), aff’d, 365 F.2d 832 (2d Cir. 1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1319, 18 L.Ed.2d 347 (1967). . H.R. 183 (May 15-17, 1968). . See United States ex rel. Brock v." }, { "docid": "23304288", "title": "", "text": "did he, or any other agent, threaten that either wife or son would or could be arrested. Record at 376. These findings were consistent with the testimony of the agents and the only evidence to the contrary was Faruolo’s testimony which Judge Neaher said he disbelieved. Id. The issue was one of credibility which the district court, who saw and heard the witnesses, resolved in favor of the agents. United States v. Fernandez, 456 F.2d 638, 640 (2d Cir. 1972). The argument is reduced therefore to the proposition that Egan’s statement that he would apply for a warrant, which conveyed the impression that one would be obtained, constituted a coercive factor negating consent. In comparable cases this and other courts have held to the contrary. Here the defendant had been given partial Miranda, warnings, he was told that he did not have to consent to the search (in United States v. Mapp, supra, 476 F.2d at 77, we held that failure even to advise the person of the right to withhold consent is not fatal but only one factor to be held in the balance) and he consented after being made aware of the fact that a warrant would be obtained. The district court found that Egan’s advice was well grounded. There was no deceit or trickery. The court below found that there was not only a sufficient basis for his communicated belief but that in fact there were grounds for the issuance of a search warrant. This is not at all open to serious question. The house and the defendants had been under surveillance. Faruolo was apprehended practically in flagrante delicto in his own back yard unloading the stolen goods which he later admitted, after full Miranda warnings, he knew had been stolen. In United States v. Bracer, 342 F.2d 522 (2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 427, 15 L.Ed.2d 359 (1965), the defendant was arrested while in possession of drugs but he did not consent to a search of his residence until he was advised that a warrant would be obtained. Judge Smith’s opinion, in" }, { "docid": "3655474", "title": "", "text": "Attorney for the Eastern District of New York where he arrived at approximately 11:00 A.M. Counsel was then obtained for him and he was arraigned at approximately 11:30 A.M. II. The Suppression of the Handguns Candella’s conduct when he was arrested constituted consent to the seizure of the handguns. See United States v. Rothberg, 460 F.2d 223 (2d Cir. 1972); United States v. Gaines, 441 F.2d 1122 (2d Cir.), vacated and remanded on other grounds, 404 U.S. 878, 92 S.Ct. 223, 30 L.Ed.2d 159 (1971). Candella, after being informed of his rights, pointed to the exact spots where the guns were located and told the officers where they were. Here, as in Roth-berg, there is “no evidence ... of coercion or other circumstances that would render the consent invalid.” 460 F.2d at 224. Consent was “freely and voluntarily given.” See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L.Ed.2d 797 (1968); United States v. Fernandez, 456 F.2d 638 (2d Cir. 1972). “[T]he mere fact that a suspect is under arrest does not negate the possibility of a voluntary consent. Neither does the suspect’s knowledge that the search will almost certainly demonstrate his guilt.” United States ex rel. Lundergan v. McMann, 417 F.2d 519, 521 (2d Cir. 1969). In addition to the factor of consent to the seizure of the guns, they should have been held admissible because in practical effect they were in “plain view” of the agents. The agents were legally in Candella’s home for the purpose of making an arrest for which they had a valid arrest warrant. Their attention was directed by Candella to the very spot where the guns were situated. If the containers had been open there would be no doubt about the propriety of the seizure. Candella’s statement that the guns were in the containers was the equivalent of his opening the containers for the agents’ inspection. “Where . . . the arresting officer inadvertently comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the" }, { "docid": "22580173", "title": "", "text": "Cir. 1971); United States v. Gaines, 441 F.2d 1122 (2d Cir.), vacated and remanded, 404 U.S. 878, 92 S.Ct. 223, 30 L.Ed.2d 159 (1971), on remand, aff’g on other grounds, 460 F.2d 176, cert. denied, 409 U.S. 883, 93 S.Ct. 172, 34 L.Ed.2d 139 (1972); United States v. Pino, 431 F.2d 1043, 1044-45 (2d Cir. 1970), cert. denied, 402 U.S. 989, 91 S.Ct. 1675, 29 L.Ed.2d 154 (1971); United States v. Lozaw, 427 F.2d 911, 914-15 (2d Cir. 1970); id. at 917- (Lumbard, C. J., and Hays, J., concurring); United States v. Llanes, 398 F.2d 880, 883 (2d Cir. 1968), cert. denied, 393 U.S. 1032, 89 S.Ct. 647, 21 L.Ed.2d 576 (1969); United States v. McMillan, 368 F.2d 810 (2d Cir. 1966), cert. denied, 386 U.S. 909, 87 S.Ct. 856, 17 L.Ed.2d 783 (1967); United States v. Conti, 361 F.2d 153 (2d Cir. 1966), vacated on other grounds, 390 U.S. 204, 88 S.Ct. 899, 19 L.Ed.2d 1035 (1968); United States v. Monticallos, 349 F.2d 80 (2d Cir. 1965); United States v. Hall, 348 F.2d 837, 841 — 42 (2d Cir.), cert. denied, 382 U.S. 947, 86 S.Ct. 408, 15 L.Ed.2d 355 (1965); United States v. Price, 345 F.2d 256 (2d Cir.), cert. denied, 382 U.S. 949, 86 S.Ct. 404, 15 L.Ed.2d 357 (1965); United States v. Miguel, 340 F.2d 812 (2d Cir.), cert. denied, 382 U.S. 859, 86 S.Ct. 116, 15 L.Ed.2d 97 (1965); United States v. Nicholas, 319 F.2d 697 (2d Cir.), cert. denied, 375 U.S. 933, 84 S.Ct. 337, 11 L.Ed.2d 265 (1963). Today’s decision is in accord with the law of the Sixth, Ninth and District of Columbia Circuits. United States v. Killebrew, 560 F.2d 729 (6th Cir. 1977); United States v. Calhoun, 542 F.2d 1094, 1102-03 (9th Cir. 1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 792, 50 L.Ed.2d 781 (1977); Dorman v. United States, 140 U.S.App. D.C. 313, 435 F.2d 385 (1970) (en banc). See also United States v. Gardner, 553 F.2d 946 (5th Cir. 1977), cert. denied,-U.S.-, 98 S.Ct. 722, 54 L.Ed.2d 753 (1978); United States v. Harper, 550 F.2d 610 (10th Cir. 1977)," } ]

[ { "docid": "22093163", "title": "", "text": "or not he is now a member of the Communist Party is an obstruction of the function of this Committee, not a frustration if that word has been used. I think it would be an obstruction. There are phases of his moral character that we haven’t been able to investigate simply because we have been stopped at this point, and I for one could not certify to the Supreme Court that he was a proper person to be admitted to practice law in this State until he answers the question about his Communist affiliation.” The record thus leaves no room for doubt on the score of “warning,” and petitioner does not indeed contend to the contrary. III. Finally, petitioner argues that, in any event, he was privileged not to respond to questions dealing with Communist Party membership because they unconstitutionally impinged upon rights of free speech and association protected by the Fourteenth Amendment. At the outset we reject the view that freedom of speech and association (N. A. A. C. P. v. Alabama, 357 U. S. 449, 460), as protected by the First and Fourteenth Amendments, are “absolutes,” not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment. Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection. See, e. g., Schenck v. United States, 249 U. S. 47; Chaplinsky v. New Hampshire, 315 U. S. 568; Dennis v. United States, 341 U. S. 494; Beauharnais v. Illinois, 343 U. S. 250; Yates v. United States, 354 U. S. 298; Roth v. United States, 354 U. S. 476. On the other hand, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded" } ]

[ { "docid": "22702093", "title": "", "text": "processes of law to be invoked only when the provocateurs among us move from speech to action. Vishinsky wrote in 1938 in The Law of the Soviet State, “In our state, naturally, there is and can be no place for freedom of speech, press, and so on for the foes of socialism.” Our concern should be that we accept no such standard for the United States. Our faith should be that our people will never give support to these advocates of revolution, so long as we remain loyal to the purposes for which our Nation was founded. APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS. There have been numerous First Amendment cases before the Court raising the issue of clear and present danger since Mr. Justice Holmes first formulated the test in Schenck v. United States, 249 U. S. 47, 52. Most of them, however, have not involved jury trials. The cases which may be deemed at all relevant to our problem can be classified as follows: Convictions tor contempt of court (non-jury): Near v. Minnesota, 283 U. S. 697; Bridges v. California, 314 U. S. 252; Thomas v. Collins, 323 U. S. 516; Pennekamp v. Florida, 328 U. S. 331; Craig v. Harney, 331 U. S. 367. Convictions by state courts sitting without juries, GENERALLY FOR VIOLATIONS OF LOCAL ORDINANCES: Lovell v. Griffin, 303 U. S. 444; Schneider v. State, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296; Marsh v. Alabama, 326 U. S. 501; Tucker v. Texas, 326 U. S. 517; Winters v. New York, 333 U. S. 507; Saia v. New York, 334 U. S. 558; Kovacs v. Cooper, 336 U. S. 77; Kunz v. New York, 340 U. S. 290; Feiner v. New York, 340 U. S. 315. Injunctions against enforcement of state or local laws (non-jury) : Grosjean v. American Press Co., 297 U. S. 233; Hague v. C. I. O., 307 U. S. 496; Minersville School District v. Gobitis, 310 U. S. 586; West Virginia Board of Education v. Barnette, 319 U. S. 624. Administrative proceedings (non-jury) : Bridges v. Wixon, 326" }, { "docid": "22537287", "title": "", "text": "Oregon, 299 U. S. 353, 364; Grosjean v. American Press Co., 297 U. S. 233, 243; Near v. Minnesota, 283 U. S. 697, 707; Stromberg v. California, 283 U. S. 359, 368; Whitney v. California, 274 U. S. 357, 362, 371, 373; Gitlow v. New York, 268 U. S. 652, 666. Appellant here pitches his argument on the due process clause of the Fourteenth Amendment. Schenck v. United States, 249 U. S. 47; Whitney v. California, 274 U. S. 357, 373 (Brandeis, J., concurring); Stromberg v. California, 283 U. S. 359; Near v. Minnesota, 283 U. S. 697; De Jonge v. Oregon, 299 U. S. 353; Herndon v. Lowry, 301 U. S. 242; Cantwell v. Connecticut, 310 U. S. 296. The protection of the First Amendment, mirrored in the Fourteenth, is not limited to the Blackstonian idea that freedom of the press means only freedom from restraint prior to publication. Near v. Minnesota, 283 U. S. 697, 714-715. Chafee, Free Speech in the United States (1941), 149. Chafee, op. cit., 150. Since the complaint charged appellant only with violating the first provision of the statute, the problem of Stromberg v. California, 283 U. S. 359, is not present. State v. Brown, 68 N. H. 200, 38 A. 731; State v. McConnell, 70 N. H. 294, 47 A. 267. We do not have here the problem of Lanzetta v. New Jersey, 306 U. S. 451. Even if the interpretative gloss placed on the statute by the court below be disregarded, the statute had been previously construed as intended to preserve the public peace by punishing conduct, the direct tendency of which was to provoke the person against whom it was directed to acts of violence. State v. Brown, 68 N. H. 200, 38 A. 731 (1894). Appellant need not therefore have been a prophet to understand what the statute condemned. Cf. Herndon v. Lowry, 301 U. S. 242. See Nash v. United States, 229 U. S. 373, 377." }, { "docid": "22615720", "title": "", "text": "U. L. Rev. 549, 557. In Robertson v. Baldwin, 165 U. S. 275, 281, the Court said: “Thus, the freedom of speech and of the press (art. 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation That sentiment was repeated in a number of cases including Beauharnais v. Illinois, supra, n. 7. See Near v. Minnesota, 283 U. S. 697, 715; Chaplinsky v. New Hampshire, 315 U. S. 568. See, e. g., Sweeney v. Patterson, 76 U. S. App. D. C. 23, 128 F. 2d 457; Hendrix v. Mobile Register, 202 Ala. 616, 81 So. 558. Even after our decision in New York Times was before him, the trial judge held it inapplicable. It is almost certain that he would have rebuffed any effort to interpose general constitutional defenses at the time of trial. See Comment, Waiver of a Previously Unrecognized Defense: Must Lawyers Be Seers?, 114 U. Pa. L. Rev. 451. The majority opinion in Time, Inc. v. Hill, 385 U. S. 374, was limited to the consideration of nondefamatory matter. Id., at 391. Schenck v. United States, 249 U. S. 47 (Holmes, J.); Abrams v. United States, 250 U. S. 616, 624 (Holmes, J., dissenting); Whitney v. California, 274 U. S. 357, 372 (Brandeis, J., concurring). See Levy, Legacy of Suppression. The phrase is from the Court’s opinion in Time, Inc. v. Hill, supra, at 389. E. g., 48 Stat. 82, as amended, 15 U. S. C. § 77k (penalizing negligent misstatement). 18 U. S. C. § 1341. See Traylor Engineering & Mfg. Co. v. National Container Corp., 45 Del. 143, 70 A. 2d 9; Restatement, Torts § 525 (deceit); Nash v. Minnesota Title Ins. & Trust Co., 163 Mass. 574, 40 N. E. 1039 (negligent misrepresentation). See 1 Harper & James, The Law of Torts § 5.20. Some privileges such as the one pertaining to reports of judicial proceedings are recognized as absolute. Others, such as the fair-comment privilege are recognized only as conditional privileges and may be vitiated by proof of actual malice." }, { "docid": "22643503", "title": "", "text": "flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Mr. Justice Brandéis, concurring in Whitney v. California, 274 U. S. 357, 377 (1927). See Mr. Justice Holmes, dissenting in Abrams v. United States, 250 U. S. 616, 630 (1919). Bridges v. California, 314 U. S. 252 (1941); Pennekamp v. Florida, 328 U. S. 331 (1946); Craig v. Harney, 331 U. S. 367 (1947). Mr. Justice Jackson, concurring in Thomas v. Collins, 323 U.S. 516, 547 (1945). Schneider v. State, 308 U. S. 147, 161 (1939). Steele v. Louisville & N. R. Co., 323 U. S. 192, 202 (1944). Cf. cases cited in note 9, supra, and Whitney v. California, 274 U. S. 357 (1927); Fiske v. Kansas, 274 U. S. 380 (1927); Stromberg v. California, 283 U. S. 359 (1931); Near v. Minnesota, 283 U. S. 697 (1931); De Jonge v. Oregon, 299 U. S. 353 (1937); Herndon v. Lowry, 301 U. S. 242 (1937). Cf. Grosjean v. American Press Co., 297 U. S. 233 (1936); Thomas v. Collins, 323 U. S. 516 (1945). In Cox v. New Hampshire, 312 U. S. 569 (1941), Mr. Chief Justice Hughes, speaking for a unanimous Court, stated the considerations thought controlling in a number of these cases: “In Lovell v. Griffin, [303 U. S. 444], the ordinance prohibited the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the city manager, thus striking at the very foundation of the freedom of the press by subjecting it to license and censorship. In Hague v. Committee for Industrial Organization, [307 U. S. 496], the ordinance dealt with the exercise of the right of assembly for the purpose of communicating views; it did not make comfort or convenience in the use of" }, { "docid": "22088945", "title": "", "text": "firm or corporation violating any of the provisions of this section, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than fifty dollars ($50.00), nor more than two hundred dollars ($200.00).” People v. Beauharnais, 408 Ill. 512, 514, 97 N. E. 2d 343, 344-345. The Exhibit A referred to in the information is the lithograph referred to in the instructions to the jury as People’s Exhibit 3. 408 Ill. 512, at 515-516 and 517, 97 N. E. 2d 343, at 345-346. If the highest court of the state treats the federal question as properly before it, and decides the question, the question is reviewable here, regardless of the manner in which it was raised in the inferior courts of the state. See Whitney v. California, 274 U. S. 357, 361, and cases there cited. Hebert v. Louisiana, 272 U. S. 312, 316; Palko v. Connecticut, 302 U. S. 319; Adamson v. California, 332 U. S. 46, 66. Gitlow v. New York, 268 U. S. 652, 666, 672; Near v. Minnesota, 283 U. S. 697, 707; Pennekamp v. Florida, 328 U. S. 331, 335. De Jonge v. Oregon, 299 U. S. 353, 365: “The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.” See 333 U. S., at 520. Cf. Thornhill v. Alabama, 310 U. S. 88; Herndon v. Lowry, 301 U. S. 242, 263-264. 283 U.S., at 361: “Any person who displays a red flag, banner or badge or any flag, badge, banner, or device of any color or form whatever in any public place or in any meeting place or public" }, { "docid": "22702095", "title": "", "text": "U. S. 135; Schneiderman v. United States, 320 U. S. 118; American Communications Association v. Douds, 339 U. S. 382. Cases tried before juries for violations of state LAWS DIRECTED AGAINST ADVOCACY OF ANARCHY, CRIMINAL syndicalism, etc.: Gilbert v. Minnesota, 254 U. S. 325; Gitlow v. New York, 268 U. S. 652; Whitney v. California, 274 U. S. 357; Fiske v. Kansas, 274 U. S. 380; Stromberg v. California, 283 U. S. 359; De Jonge v. Oregon, 299 U. S. 353; Herndon v. Lowry, 301 U. S. 242; Taylor v. Mississippi, 319 U. S. 583; or for minor local offenses: Cox v. New Hampshire, 312 U. S. 569; Chaplinsky v. New Hampshire, 315 U. S. 568; Terminiello v. Chicago, 337 U. S. 1; Niemotko v. Maryland, 340 U. S. 268. Federal prosecutions before juries under the espionage ACT OF 19 17 FOLLOWING WORLD WAR I: Schenck v. United States, 249 U. S. 47; Frohwerk v. United States, 249 U. S. 204; Debs v. United States, 249 U. S. 211; Abrams v. United States, 250 U. S. 616; Schaefer v. United States, 251 U. S. 466; Pierce v. United States, 252 U. S. 239. Pierce v. United States ruled that the question of clear and present danger was for the jury. In the other cases in this group the question whether the issue was for the court or the jury was not raised or passed upon. Federal prosecution before a jury under the espionage ACT OF 19 17 FOLLOWING WORLD WAR II: Hartzel V. United States, 322 U. S. 680. The jury was instructed on clear and present danger in terms drawn from the language of Mr. Justice Holmes in Schenck v. United States, supra, p. 52. The Court reversed the conviction on the ground that there had not been sufficient evidence for submission of the case to the jury. 18 U. S. C. § 2384 provides: “If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government" }, { "docid": "22759377", "title": "", "text": "2d, at 249. The petitioners contend that there was a complete absence of any evidence of the commission of this offense, and that they were thus denied one of the most basic ele ments of due process of law. Thompson v. Louisville, 362 U. S. 199; see Garner v. Louisiana, 368 U. S. 157; Taylor v. Louisiana, 370 U. S. 154. Whatever the merits of this contention, we need not pass upon it in the present case. The state courts have held that the petitioners’ conduct constituted breach of the peace under state law, and we may accept their decision as binding upon us to that extent. But it nevertheless remains our duty in a case such as this to make an independent examination of the whole record. Blackburn v. Alabama, 361 U. S. 199, 205, n. 5; Pennekamp v. Florida, 328 U. S. 331, 335; Fiske v. Kansas, 274 U. S. 380, 385-386. And it is clear to us that in arresting, convicting, and punishing the petitioners under the circumstances disclosed by this record, South Carolina infringed the petitioners’ constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances. It has long been established that these First Amendment freedoms are protected by the Fourteenth Amendment from invasion by the States. Gitlow v. New York, 268 U. S. 652; Whitney v. California, 274 U. S. 357; Stromberg v. California, 283 U. S. 359; De Jonge v. Oregon, 299 U. S. 353; Cantwell v. Connecticut, 310 U. S. 296. The circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form. The petitioners felt aggrieved by laws of South Carolina which allegedly “prohibited Negro privileges in this State.” They peaceably assembled at the site of the State Government and there peaceably expressed their grievances “to the citizens of South Carolina, along with the Legislative Bodies of South Carolina.” Not until they were told by police officials that they must disperse on pain of arrest did they do more. Even then, they but sang patriotic and religious" }, { "docid": "22088946", "title": "", "text": "666, 672; Near v. Minnesota, 283 U. S. 697, 707; Pennekamp v. Florida, 328 U. S. 331, 335. De Jonge v. Oregon, 299 U. S. 353, 365: “The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.” See 333 U. S., at 520. Cf. Thornhill v. Alabama, 310 U. S. 88; Herndon v. Lowry, 301 U. S. 242, 263-264. 283 U.S., at 361: “Any person who displays a red flag, banner or badge or any flag, badge, banner, or device of any color or form whatever in any public place or in any meeting place or public assembly, or from or on any house, building or window as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character is guilty of a felony.” Then § 403a of the Calif. Penal Code. 283 U. S. at 368. See also Williams v. North Carolina, 317 U. S. 287, 291-292. Cf. Thomas v. Collins, 323 U. S. 516, 529; Cramer v. United States, 325 U. S. 1, 36, n. 45. Smith-Hurd Ill. Ann. Stat., 1936, c. 38, § 402, quoted in majority opinion at n. 5. People v. Simcox, 379 Ill. 347, 40 N. E. 2d 525; People v. White Circle League, 408 Ill. 564, 97 N. E. 2d 811 (1951). See also Fox Film Corp. v. Collins, 236 Ill. App. 281; Bevins v. Prindable, 39 F. Supp. 708, aff’d 314 U. S. 573. Indeed, if the Illinois courts had been inclined to interpret their statute as this Court now interprets it, they could" }, { "docid": "22349027", "title": "", "text": "Roth v. United States, 354 U. S. 476, 486-487 (1957); Beauharnais v. Illinois, 343 U. S. 250, 266 (1952); Pennekamp v. Florida, 328 U. S. 331, 348-349 (1946); Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); Near v. Minnesota ex rel. Olson, 283 U. S. 697, 715 (1931). The majority concludes that respondent Firestone was neither a “public official” nor a “public figure,” New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), and therefore that this case does not fall within any exception, then announced, to the Court’s statements that common-law defamation rules do not violate the First Amendment. In this respect I agree with the majority. Mr. Justice Marshall, dissenting. The Court agrees with the Supreme Court of Florida that the “actual malice” standard of New York Times Co. v. Sullivan, 376 U. S. 254 (1964), does not apply to this case. Because I consider the respondent, Mary Alice Firestone, to be a “public figure” within the meaning of our prior decisions, Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974); Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), I respectfully dissent. I Mary Alice Firestone was not a person “first brought to public attention by the defamation that is the subject of the lawsuit.” Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 78, 86 (1971) (Marshall, J., dissenting). On the contrary, she was “prominent among the '400' of Palm Beach society,” and an “active [member] of the sporting set,” 271 So. 2d 745, 751 (Fla. 1972), whose activities predictably attracted the attention of a sizable portion of the public. Indeed, Mrs. Firestone’s appearances in the press were evidently frequent enough to warrant her subscribing to a press-clipping service. Mrs. Firestone brought suit for separate maintenance, with reason to know of the likely public interest in the proceedings. As the Supreme Court of Florida noted, Mr. and Mrs. Firestone’s “marital difficulties were . . . well-known,” and the lawsuit became “a veritable cause célebre in social circles across the country.” Ibid. The" }, { "docid": "22661532", "title": "", "text": "v. New Hampshire, 315 U. S. 568, 572; Near v. Minnesota, 283 U. S. 697, 715. Herndon v. Lowry, 301 U. S. 242. Bridges v. California, 314 U. S. 252; Pennekamp v. Florida, 328 U. S. 331. De Jonge v. Oregon, 299 U. S. 353. Edwards v. South Carolina, 372 U. S. 229. Roth v. United States, 354 U. S. 476. N. A. A. C. P. v. Button, 371 U. S. 415. See also Mill, On Liberty (Oxford: Blackwell, 1947), at 47: “. . . [T]o argue sophistically, to suppress facts or arguments, to misstate the elements of the case, or misrepresent the opposite opinion ... all this, even to the most aggravated degree, is so continually done in perfect good faith, by persons who are not considered, and in many other respects may not deserve to be considered, ignorant or incompetent, that it is rarely possible, on adequate grounds, conscientiously to stamp the misrepresentation as morally culpable; and still less could law presume to interfere with this kind of controversial misconduct.” The climate in which public officials operate, especially during a political campaign, has been described by one commentator in the following terms: “Charges of gross incompetence, disregard of the public interest, communist sympathies, and the like usually have filled the air; and hints of bribery, embezzlement, and other criminal conduct are not infrequent.” Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875 (1949). For a similar description written 60 years earlier, see Chase, Criticism of Public Officers and Candidates for Office, 23 Am. L. Rev. 346 (1889). The Report on the Virginia Resolutions further stated: “[I]t is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing public characters and measures; . . . which, again, is equivalent to a protection of those who administer the government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it, by free animadversions on their characters and conduct. Nor can there be a doubt" }, { "docid": "22649905", "title": "", "text": "Baxley, 355 U. S. 313, 321 (1958) (speech); Grosjean v. American Press Co., 297 U. S. 233, 244 (1936) (press); Cantwell v. Connecticut, 310 U. S. 296, 303 (1940) (religion); De Jonge v. Oregon, 299 U. S. 353, 364 (1937) (assembly); Shelton v. Tucker, 364 U. S. 479, 486, 488 (1960) (association); Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293, 296 (1961) (association); Edwards v. South Carolina, 372 U. S. 229 (1963) (speech, assembly, petition for redress of grievances). E. g., Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 235-241 (1897); Smyth v. Ames, 169 U. S. 466, 522-526 (1898). E. g., Wolf v. Colorado, 338 U. S. 25, 27-28 (1949); Elkins v. United States, 364 U. S. 206, 213 (1960); Mapp v. Ohio, 367 U. S. 643, 655 (1961). Robinson v. California, 370 U. S. 660, 666 (1962). Justices Bradley, Swayne and Field emphasized that the first eight Amendments granted citizens of the United States certain privileges and immunities that were protected from abridgment by the States by the Fourteenth Amendment. See Slaughter-House Cases, supra, at 118-119; O’Neil v. Vermont, supra, at 363. Justices Harlan and Brewer accepted the same theory in the O’Neil case (see id., at 370-371), though Justice Harlan indicated that all “persons,” not merely “citizens,” were given this protection. Ibid. In Twining v. New Jersey, 211 U. S. 78, 117, Justice Harlan's position was made clear: “In my judgment, immunity from self-incrimination is protected against hostile state action, not only by ... . [the Privileges and Immunities Clause], but [also] by . . . [the Due Process Clause].” Justice Brewer, in joining the opinion of the Court, abandoned the view that the entire Bill of Bights applies to the States in Maxwell v. Dow, 176 U. S. 581. See Roth v. United States, 354 U. S. 476, 501, 506; Smith v. California, 361 U. S. 147, 169. Beauharnais v. Illinois, 343 U. S. 250, 288. Cf. the opinions of Justices Holmes and Brandéis in Gitlow v. New York, 268 U. S. 652, 672, and Whitney v. California, 274 U." }, { "docid": "22537286", "title": "", "text": "can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that the appellations “damned racketeer” and “damned Fascist” are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace. The refusal of the state court to admit evidence of provocation and evidence bearing on the truth or falsity of the utterances, is open to no Constitutional objection. Whether the facts sought to be proved by such evidence constitute a defense to the charge, or may be shown in mitigation, are questions for the state court to determine. Our function is fulfilled by a determination that the challenged statute, on its face and as applied, does not contravene the Fourteenth Amendment. Affirmed. See also Bridges v. California, 314 U. S. 252; Cantwell v. Connecticut, 310 U. S. 296, 303; Thornhill v. Alabama, 310 U. S. 88, 95; Schneider v. State, 308 U. S. 147, 160; De Jonge v. Oregon, 299 U. S. 353, 364; Grosjean v. American Press Co., 297 U. S. 233, 243; Near v. Minnesota, 283 U. S. 697, 707; Stromberg v. California, 283 U. S. 359, 368; Whitney v. California, 274 U. S. 357, 362, 371, 373; Gitlow v. New York, 268 U. S. 652, 666. Appellant here pitches his argument on the due process clause of the Fourteenth Amendment. Schenck v. United States, 249 U. S. 47; Whitney v. California, 274 U. S. 357, 373 (Brandeis, J., concurring); Stromberg v. California, 283 U. S. 359; Near v. Minnesota, 283 U. S. 697; De Jonge v. Oregon, 299 U. S. 353; Herndon v. Lowry, 301 U. S. 242; Cantwell v. Connecticut, 310 U. S. 296. The protection of the First Amendment, mirrored in the Fourteenth, is not limited to the Blackstonian idea that freedom of the press means only freedom from restraint prior to publication. Near v. Minnesota, 283 U. S. 697, 714-715. Chafee, Free Speech in the United States (1941), 149. Chafee, op. cit., 150. Since the complaint charged" }, { "docid": "22575554", "title": "", "text": "First Amendment.” Id., at 269; see Both v. United States, 354 U.S. 476, 484 (1957); Bridges v. California, 314 U.S. 252, 270 (1941); Stromberg v. California, 283 U.S. 359, 369 (1931). Those cases all relied on our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times, 376 U.S., at 270; see Terminiello v. Chicago, 337 U.S. 1, 4 (1949); Be Jonge v. Oregon, 299 U.S. 353, 365 (1937); Whitney v. California, 274 U.S. 357, 375-376 (1927) (Brandeis, J., concurring); see also Roth, 354 U. S., at 484; Stromberg, 283 U.S., at 369; Bridges, 314 U.S., at 270. It was the overriding importance of that commitment that supported our holding that neither factual error nor defamatory content, nor a combination of the two, sufficed to remove the First Amendment shield from criticism of official conduct. Id., at 273; see also NAACP v. Button, 371 U.S. 415, 445 (1963); Wood v. Georgia, 370 U.S. 375 (1962); Craig v. Harney, 331 U.S. 367 (1947); Pennekamp v. Florida, 328 U.S. 331, 342, 343, n. 5, 345 (1946); Bridges, 314 U.S., at 270. We think it clear that parallel reasoning requires the conclusion that a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern. The months of negotiations over the proper level of compensation for teachers at the Wyoming Valley West High School were unquestionably a matter of publie concern, and respondents were clearly engaged in debate about that concern. That debate may be more mundane than the Communist rhetoric that inspired Justice Brandéis’ classic opinion in Whitney v. California, 274 U.S., at 372, but it is no less worthy of constitutional protection. The judgment is affirmed. It is so ordered. See 48 Stat. 1069,1103. Either actual damages or “statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000” may be recovered under 18 U.S. C. § 2520(c)(2); under the Pennsylvania Act, the amount is the greater of $100 a day or $1,000, but the" }, { "docid": "22661530", "title": "", "text": "to help Please send further information Please make checks payable to: Committee To Defend Martin Luther King A copy of the advertisement is printed in the Appendix. Respondent did not consider the charge of expelling the students to be applicable to him, since “that responsibility rests with the State Department of Education.” Approximately 394 copies of the edition of the Times containing the advertisement were circulated in Alabama. Of these, about 35 copies were distributed in Montgomery County. The total circulation of the Times for that day was approximately 650,000 copies. Since we sustain the contentions of all the petitioners under the First Amendment’s guarantees of freedom of speech and of the press as applied to the States by the Fourteenth Amendment, we do not decide the questions presented by the other claims of violation of the Fourteenth Amendment. The individual petitioners contend that the judgment against them offends the Due Process Clause because there was no evidence to show that they had published or authorized the publication of the alleged libel, and that the Due Process and Equal Protection Clauses were violated by racial segregation and racial bias in the courtroom. The Times contends that the assumption of jurisdiction over its corporate person by the Alabama courts overreaches the territorial limits of the Due Process Clause. The latter claim is foreclosed from our review by the ruling of the Alabama courts that the Times entered a general appearance in the action and thus waived its jurisdictional objection; we cannot say that this ruling lacks “fair or substantial support” in prior Alabama decisions. See Thompson v. Wilson, 224 Ala. 299,140 So. 439 (1932); compare N. A. A. C. P. v. Alabama, 357 U. S. 449, 454-458. See American Law Institute, Restatement of Torts, § 593, Comment b (1938). Konigsberg v. State Bar of California, 366 U. S. 36, 49, and n. 10; Times Film Corp. v. City of Chicago, 365 U. S. 43, 48; Roth v. United States, 354 U. S. 476, 486-487; Beauharnais v. Illinois, 343 U. S. 250, 266; Pennekamp v. Florida, 328 U. S. 331, 348-349; Chaplinsky" }, { "docid": "22558769", "title": "", "text": "N. C. Const., Art. 18 (1776). In 1932 over 28,000 veterans demanding a bonus marched on Washington, D. C., paraded the streets, and camped mostly in parks and other public lands in the District, Virginia, and Maryland only to be routed by the Army. See Waters, B. E. F. (1933). See, e. g., De Jonge v. Oregon, 299 U. S. 353; Feiner v. New York, 340 U. S. 315; Niemotko v. Maryland, 340 U. S. 268; Edwards v. South Carolina, 372 U. S. 229; Cox v. Louisiana, 379 U. S. 536; Shuttlesworth v. City of Birmingham, 382 U. S. 87. The same is true of other measures which inhibit First Amendment rights. See, e. g., N. A. A. C. P. v. Alabama, 357 U. S. 449; Bates v. City of Little Rock, 361 U. S. 516; Shelton v. Tucker, 364 U. S. 479; N. A. A. C. P. v. Button, 371 U. S. 415. If the invalidity of regulations and official conduct curtailing First Amendment rights turned on an unequivocal showing that the measure was intended to inhibit the rights, protection would be sorely lacking. It is not the intent or purpose of the measure but its effect on First Amendment rights which is crucial." }, { "docid": "22349026", "title": "", "text": "be affirmed. My Brother Rehnquist concludes that negligence is sufficient fault, under Gertz, to justify the judgment below, and that a finding of negligence may constitutionally be supplied by the Florida Supreme Court. I agree. Furthermore, the state court referred to Gertz v. Robert Welch, Inc., by name; noted the “convincing evidence of . . . negligence” in the case; pointed out that a careful examination of the divorce decree would have “clearly demonstrated” that the divorce was not grounded on adultery, as reported by Time, Inc.; and stated flatly: “This is a flagrant example of 'journalistic negligence.'” 305 So. 2d 172, 178 (1974). It appears to me that the Florida Supreme Court has made a sufficiently “conscious determination,” ante, at 463, of the fact of negligence. If it is Gertz that controls this case and if that decision is to be applied retroactively, I would affirm the judgment. Konigsberg v. State Bar of California, 366 U. S. 36, 49, and n. 10 (1961); Times Film Corp. v. Chicago, 365 U. S. 43, 48 (1961); Roth v. United States, 354 U. S. 476, 486-487 (1957); Beauharnais v. Illinois, 343 U. S. 250, 266 (1952); Pennekamp v. Florida, 328 U. S. 331, 348-349 (1946); Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); Near v. Minnesota ex rel. Olson, 283 U. S. 697, 715 (1931). The majority concludes that respondent Firestone was neither a “public official” nor a “public figure,” New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), and therefore that this case does not fall within any exception, then announced, to the Court’s statements that common-law defamation rules do not violate the First Amendment. In this respect I agree with the majority. Mr. Justice Marshall, dissenting. The Court agrees with the Supreme Court of Florida that the “actual malice” standard of New York Times Co. v. Sullivan, 376 U. S. 254 (1964), does not apply to this case. Because I consider the respondent, Mary Alice Firestone, to be a “public figure” within the meaning of our" }, { "docid": "22661531", "title": "", "text": "Due Process and Equal Protection Clauses were violated by racial segregation and racial bias in the courtroom. The Times contends that the assumption of jurisdiction over its corporate person by the Alabama courts overreaches the territorial limits of the Due Process Clause. The latter claim is foreclosed from our review by the ruling of the Alabama courts that the Times entered a general appearance in the action and thus waived its jurisdictional objection; we cannot say that this ruling lacks “fair or substantial support” in prior Alabama decisions. See Thompson v. Wilson, 224 Ala. 299,140 So. 439 (1932); compare N. A. A. C. P. v. Alabama, 357 U. S. 449, 454-458. See American Law Institute, Restatement of Torts, § 593, Comment b (1938). Konigsberg v. State Bar of California, 366 U. S. 36, 49, and n. 10; Times Film Corp. v. City of Chicago, 365 U. S. 43, 48; Roth v. United States, 354 U. S. 476, 486-487; Beauharnais v. Illinois, 343 U. S. 250, 266; Pennekamp v. Florida, 328 U. S. 331, 348-349; Chaplinsky v. New Hampshire, 315 U. S. 568, 572; Near v. Minnesota, 283 U. S. 697, 715. Herndon v. Lowry, 301 U. S. 242. Bridges v. California, 314 U. S. 252; Pennekamp v. Florida, 328 U. S. 331. De Jonge v. Oregon, 299 U. S. 353. Edwards v. South Carolina, 372 U. S. 229. Roth v. United States, 354 U. S. 476. N. A. A. C. P. v. Button, 371 U. S. 415. See also Mill, On Liberty (Oxford: Blackwell, 1947), at 47: “. . . [T]o argue sophistically, to suppress facts or arguments, to misstate the elements of the case, or misrepresent the opposite opinion ... all this, even to the most aggravated degree, is so continually done in perfect good faith, by persons who are not considered, and in many other respects may not deserve to be considered, ignorant or incompetent, that it is rarely possible, on adequate grounds, conscientiously to stamp the misrepresentation as morally culpable; and still less could law presume to interfere with this kind of controversial misconduct.” The climate in" }, { "docid": "22834435", "title": "", "text": "Chicago, 365 U. S. 43, 47-48 (1961), or against so-called “fighting words,” Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). Such restraints have been permitted on the theory that the censored expression does not enjoy First Amendment protection. We have always been careful to insist, however, that restrictions aimed at unprotected speech be carefully crafted and applied to avoid trenching upon communication that comes within the ambit of the First Amendment. See, e. g., Freedman v. Maryland, 380 U. S. 51 (1965). It has also been speculated that the direct, immediate threat of interference with the trial process might warrant a restraint upon constitutionally protected expression. Nebraska Press Assn. v. Stuart, 427 U. S. 539, 569-570 (1976) (dictum). But see id., at 588, 594-595 (Brennan, J., concurring in judgment). Significantly, however, this Court has repeatedly rejected efforts to wield the judicial contempt power against expression that assertedly jeopardized the administration of justice. See Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 844-845 (1978); Wood v. Georgia, 370 U. S. 375 (1962); Craig v. Harney, 331 U. S. 367 (1947) ; Pennekamp v. Florida, 328 U. S. 331 (1946); Bridges v. California, 314 U. S. 252 (1941). Among the suppressed communications were a petition to a Congressman supporting amnesty for Vietnam War resisters and a leaflet outlining certain respondents’ views about the constitutional rights of servicemen. Both were censored, the former because it “contain[ed] gross misstatements and implications of law and fact [and] impugnfed] by innuendo the motives and conduct of the Commander-in-Chief of the Armed Forces”; the latter because it was “by transparent implication, disrespectful and contemptuous of all of your superiors. . . App. in No. 78-599, pp. 46-47, 50. The petitioners conceded below that suppression of the leaflet was improper under military regulations. Brief for Petitioners in No. 78-599, p. 8, n. 3. It is unnecessary to consider whether servicemen might challenge censorship decisions by bringing suits against their commanding officers. See Huff, post, at 457-458, n. 5. The lack of provision for immediate judicial review is not cured by the possibility that an individual might" }, { "docid": "22575553", "title": "", "text": "of privacy does not prohibit any publication of matter which is of public or general interest.” The Right to Privacy, 4 Harv. L. Rev. 19S, 214 (1890). One of the costs associated with participation in public affairs is an attendant loss of privacy. “Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risof this exposure is an essential incident of life in a society which places a primary value on freedom of speeeh and of press. ‘Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.’” Time, Inc. v. Hill, 385 U.S., at 388 (quoting Thornhill v. Alabama, 310 U.S. 88, 102 (1940)). Our opinion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), reviewed many of the decisions that settled the “general proposition that freedom of expression upon public questions is secured by the First Amendment.” Id., at 269; see Both v. United States, 354 U.S. 476, 484 (1957); Bridges v. California, 314 U.S. 252, 270 (1941); Stromberg v. California, 283 U.S. 359, 369 (1931). Those cases all relied on our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times, 376 U.S., at 270; see Terminiello v. Chicago, 337 U.S. 1, 4 (1949); Be Jonge v. Oregon, 299 U.S. 353, 365 (1937); Whitney v. California, 274 U.S. 357, 375-376 (1927) (Brandeis, J., concurring); see also Roth, 354 U. S., at 484; Stromberg, 283 U.S., at 369; Bridges, 314 U.S., at 270. It was the overriding importance of that commitment that supported our holding that neither factual error nor defamatory content, nor a combination of the two, sufficed to remove the First Amendment shield from criticism of official conduct. Id., at 273; see also NAACP v. Button, 371 U.S. 415, 445 (1963); Wood v. Georgia, 370 U.S. 375 (1962); Craig v. Harney, 331 U.S. 367 (1947); Pennekamp v. Florida," }, { "docid": "22702094", "title": "", "text": "283 U. S. 697; Bridges v. California, 314 U. S. 252; Thomas v. Collins, 323 U. S. 516; Pennekamp v. Florida, 328 U. S. 331; Craig v. Harney, 331 U. S. 367. Convictions by state courts sitting without juries, GENERALLY FOR VIOLATIONS OF LOCAL ORDINANCES: Lovell v. Griffin, 303 U. S. 444; Schneider v. State, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296; Marsh v. Alabama, 326 U. S. 501; Tucker v. Texas, 326 U. S. 517; Winters v. New York, 333 U. S. 507; Saia v. New York, 334 U. S. 558; Kovacs v. Cooper, 336 U. S. 77; Kunz v. New York, 340 U. S. 290; Feiner v. New York, 340 U. S. 315. Injunctions against enforcement of state or local laws (non-jury) : Grosjean v. American Press Co., 297 U. S. 233; Hague v. C. I. O., 307 U. S. 496; Minersville School District v. Gobitis, 310 U. S. 586; West Virginia Board of Education v. Barnette, 319 U. S. 624. Administrative proceedings (non-jury) : Bridges v. Wixon, 326 U. S. 135; Schneiderman v. United States, 320 U. S. 118; American Communications Association v. Douds, 339 U. S. 382. Cases tried before juries for violations of state LAWS DIRECTED AGAINST ADVOCACY OF ANARCHY, CRIMINAL syndicalism, etc.: Gilbert v. Minnesota, 254 U. S. 325; Gitlow v. New York, 268 U. S. 652; Whitney v. California, 274 U. S. 357; Fiske v. Kansas, 274 U. S. 380; Stromberg v. California, 283 U. S. 359; De Jonge v. Oregon, 299 U. S. 353; Herndon v. Lowry, 301 U. S. 242; Taylor v. Mississippi, 319 U. S. 583; or for minor local offenses: Cox v. New Hampshire, 312 U. S. 569; Chaplinsky v. New Hampshire, 315 U. S. 568; Terminiello v. Chicago, 337 U. S. 1; Niemotko v. Maryland, 340 U. S. 268. Federal prosecutions before juries under the espionage ACT OF 19 17 FOLLOWING WORLD WAR I: Schenck v. United States, 249 U. S. 47; Frohwerk v. United States, 249 U. S. 204; Debs v. United States, 249 U. S. 211; Abrams v. United States, 250 U." } ]

[ { "docid": "18598713", "title": "", "text": "by a governmental unit to enforce such governmental unit’s police or regulatory power; (5) under subsection (a)(2) of this section, of the enforcement of a judgment, obtained in an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power; .... 11 U.S.C.-§ 362 (emphasis provided).. The Department contends that the contract termination suit it filed in Commonwealth court was “an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power.” 11 U.S.C. § 362(b)(4). We disagree. We begin by stating the obvious. First, “the stay provisions of 11 U.S.C. § 362(a) do not always operate automatically.” Cournoyer v. Town of Lincoln, 790 F.2d 971, 974 (1st Cir.1986). Second, we do not doubt that one of the purposes animating section 362(b)(4) is the protection of public health and safety. See Midlantic National Bank v. New Jersey Department of Environmental Protection, — U.S. -, 106 S.Ct. 755, 761, 88 L.Ed.2d 859 (1985). It is apparent from the legislative history, however, that Congress intended the section 362(b)(4) exception to apply exclusively to actions enforcing generally applicable regulatory laws governing the behavior of debtors: Thus, where a governmental unit is suing a debtor to prevent or stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damages for violation of such law, the action or proceeding is not stayed under the automatic stay. H.R.Rep. No. 595, 95th Cong., 1st Sess. 343 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6299 [hereinafter House Report]; S.Rep. No. 989, 95th Cong., 2d Sess. 52, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5838 [hereinafter Senate Report]. Nowhere is it mentioned that section 362(b)(4) permits government agencies to enforce contractual rights against debtors without first seeking relief from the automatic stay. Nor has appellant cited any cases holding that actions by a governmental agency to enforce contractual rights, even if related to the agency’s general regulatory power, are exempt from the automatic stay. See In re Adana Mortgage Bankers, Inc., 12 B.R. 989, 1000 (Bankr.N.D.Ga.1980), vacated" } ]

[ { "docid": "4770754", "title": "", "text": "942 (6th Cir. 1972); In re Universal Medical Services, Inc., 460 F.2d 524, 526 (3d Cir. 1972); In re Farmers Grain Exchange, Inc., supra, 1 Bankr.Ct.Dec. at 1622. B. Automatic Stay of State Court Proceedings. We next examine Missouri’s contention that a writ of prohibition should issue based on the “police or regulatory power” exception to the automatic stay provision of the Bankruptcy Code. Section 362 provides that upon the filing of a bankruptcy petition, all judicial and other proceedings are stayed. This section also lists certain exceptions to the automatic stay, including section 362(b)(4), which provides: (b) The filing of a petition under section 301, 302, or 303 of this title does not operate as a stay— ‡ ‡ ‡ ‡ (4) under subsection (a)(1) of this section, of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power[.] Missouri asserts that this exception applies to the enforcement of its grain regulatory laws, and, therefore (1) the automatic stay provisions do not bar the Missouri state court proceedings; and (2) the bankruptcy court lacks the power to prevent Missouri from enforcing its grain laws by taking possession of the debtors’ Missouri warehouses. Missouri essentially argues: [T]he enforcement of grain laws is a valid exercise of a state’s police and regulatory powers. Section 362(b)(4) of the Bankruptcy Code permits enforcement proceedings initiated by state regulatory authorities to continue even though a bankruptcy petition has been filed. The case law is overwhelming that bankruptcy courts do not have subject matter jurisdiction to enjoin enforcement proceedings initiated by state regulatory authorities. The Bankruptcy Court here is attempting to enjoin Missouri’s enforcement of its grain laws. The Bankruptcy Court is powerless to thwart the Circuit Court’s exclusive jurisdiction over such enforcement proceedings. The October 20, 1980 lawsuit now pending in the Circuit Court of New Madrid County should continue. [Appellant’s Brief at 32.] We reject these contentions. The present stay provisions amplify and clarify provisions of the former bankruptcy law and bankruptcy rules providing for an automatic stay of certain proceedings" }, { "docid": "23627713", "title": "", "text": "the debtor that was or could have been commenced before the commencement of the bankruptcy proceeding. 11 U.S.C. § 362(b)(4). There are, however, - exceptions to the automatic stay provisions. The filing of a petition does not operate as a stay of the commencement or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power. 11 U.S.C. § 362(b)(4). The purpose of the exceptions to an automatic stay, is among others, to prevent the proceedings of Bankruptcy Courts from impeding governmental exercise of police and regulatory powers. The legislative history of- the exception explains what governmental actions are excepted, and what enforcement action can occur despite a bankruptcy proceeding: Paragraph (4) excepts commencement or continuation of actions and proceedings by governmental units to enforce police or regulatory powers. Thus, where a governmental unit is suing a debtor to prevent or stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damages for violation of such a law, the action or proceeding is not stayed under the automatic stay. Paragraph (5) makes clear that the exception extends to permit an injunction and enforcement of an injunction, and to permit the entry of a money judgment, but does not extend to permit enforcement of a money judgment. 1978 U.S.Code Cong, and Adm.News, 5787, 6299. Courts have allowed exceptions to the automatic stay provisions in a wide range of regulatory settings. See Commodity Futures Trading and Incomco, Inc., 649 F.2d 128 (2nd Cir.1981) (complaint by Commodity Futures Trading Commission against a corporation and a named individual is exempt from stay); SEC v. First Financial Group of Texas, 645 F.2d 429 (5th Cir.1981) (enforcement of SEC-ordered injunctive relief and appointment of receiver are exempt from automatic stay); NLRB v. Evans Plumbing Co., 639 F.2d 291 (5th Cir.1981) (NLRB hearing ordering reinstatement of two employees with back pay not subject to automatic stay). Particularly pertinent to the instant case is In Re Tauscher, 7 B.R. 918 (Bkrtcy.E.D. Wis.1981), where the debtor was subject to an action by the Secretary of Labor involving" }, { "docid": "8170797", "title": "", "text": "the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.” 11 U.S.C. § 362(a)(1), (6). The automatic stay provides one of the fundamental protections for debtors found in the Bankruptcy Code. See, e.g., Midlantic Nat’l Bank v. N.J. Dep’t of Envtl. Prot., 474 U.S. 494, 503, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986). Congress, however, has created certain statutory exceptions that prevent the operation of the automatic stay. The police power exception at issue in this case allows for “the commencement or continuation of an action or proceeding by a governmental unit or any organization exercising authority ... to enforce such governmental unit’s or organization’s police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental unit’s or organization’s police or regulatory power.” 11 U.S.C. § 362(b)(4). “This exception discourages debtors from submitting bankruptcy petitions either primarily or solely for the purpose of evading impending governmental efforts to invoke the governmental police powers to enjoin or deter ongoing debtor conduct which would seriously threaten the public safety and welfare (e.g., environmental and/or consumer protection regulations).” In re McMullen, 386 F.3d 320, 324-25 (1st Cir. 2004) (citing In re First Alliance Mortg. Co., 263 B.R. 99, 107 (B.A.P. 9th Cir.2001) (noting that fundamental policy of § 362(b)(4) is to “prevent[ ] the bankrupt cy court from becoming a haven for wrongdoers”) (internal quotation marks and citation omitted)); see also United States v. Nicolet, Inc., 857 F.2d 202, 207 (3d Cir.1988) (“To combat the risk that the bankruptcy court would become a sanctuary for environmental wrongdoers, among others, Congress enacted the police and regulatory power exception to the automatic stay.”). The parties do not challenge the extraterritorial application of the automatic stay to the U.K. proceedings. See David P. Stromes, Note, The Extraterritorial Reach of the Bankruptcy Code’s Automatic Stay: Theory vs. Practice, 33 Brook J. Int’l. L. 277, 281 (2007) (“Since 1987, United States courts have uniformly upheld the" }, { "docid": "2470769", "title": "", "text": "obtained a restaurant permit prior to July of 1980 but when it changed from a restaurant to a nightclub disco in July of 1980 it did not ask for or receive a disco permit. The Town’s position in this matter is that Chapter 11 cannot be used as a sanctuary, for debtors who wish to conduct business in derogation of local law. The Town feels that it is properly exercising its police and regulatory powers and that the dispute over land use and zoning regulations is one properly triable in the appropriate State Courts. The debtor argues that the Town’s action is not motivated by public health and welfare considerations but is solely an attempt to interfere with and to frustrate debtor’s reorganization. The debtor asks this Court not only to stay the Town’s action but to use its broad equitable powers to fashion a just resolution of the land use controversy. This Court does have subject matter jurisdiction to decide such issues, 28 U.S.C. § 1471, and has the power to fashion a remedy, 11 U.S.C. § 105. But 11 U.S.C. § 362(b)(4) of the Bankruptcy Code exempts from the automatic stay of 11 U.S.C. § 362(a) “the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental units police or regulatory power.” Furthermore, 28 U.S.C. § 1478(a) prohibits the removal to a Bankruptcy Court of an action dealing with a governmental unit’s police or regulatory power. Basically, 11 U.S.C. § 362(b)(4) and 28 U.S.C. § 1478(a) “reflect a Congressional deference to states and a policy not to permit the bankruptcy laws to interfere too greatly with state regulatory or police power proceedings.” (1 Collier Bankruptcy Manual ¶ 3.01[2] at 3-26.) In the case at bar, the debtor, prior to entering the Chapter 11 proceeding, was operating a nightclub disco but was operating it in derogation of the Town of Henrietta’s zoning laws which require a special permit. A special permit may be obtained from the Town of Henrietta only after a public hearing. (Henrietta Code § 127-13B.) If the debtor feels that" }, { "docid": "8170796", "title": "", "text": "in a mixed standard of review for mixed questions of law and fact, and apply a clearly erroneous standard to “integral facts,” but exercise plenary review of the court’s interpretation and application of those facts to legal precepts. In re Exide Techs., 607 F.3d 957, 961-62 (3d Cir.2010). “This issue requires us to interpret and apply the legal precepts underlying section 362. Accordingly, the standard of review is plenary.” Mar. Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1203 (3d Cir.1991) (citation omitted). To the extent that we consider the decisions of the bankruptcy court and district court regarding comity, we review for abuse of discretion. Remington Rand Corp.-Del. v. Bus. Sys., Inc., 830 F.2d 1260, 1266 (3d Cir.1987). III. Analysis When a debtor files for bankruptcy, Section 362(a) of the Bankruptcy Code imposes a broad automatic stay. That stay prohibits “all entities” from, inter alia, “the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.” 11 U.S.C. § 362(a)(1), (6). The automatic stay provides one of the fundamental protections for debtors found in the Bankruptcy Code. See, e.g., Midlantic Nat’l Bank v. N.J. Dep’t of Envtl. Prot., 474 U.S. 494, 503, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986). Congress, however, has created certain statutory exceptions that prevent the operation of the automatic stay. The police power exception at issue in this case allows for “the commencement or continuation of an action or proceeding by a governmental unit or any organization exercising authority ... to enforce such governmental unit’s or organization’s police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental unit’s or organization’s police or regulatory power.” 11 U.S.C. § 362(b)(4). “This exception discourages debtors from submitting bankruptcy petitions either primarily or solely for the purpose of" }, { "docid": "7090622", "title": "", "text": "removable. The language of this restriction is similar to § 362(b)(4) of the Bankruptcy Code which excepts from the bankruptcy automatic stay “the commencement or continuation of an action or proceeding by a governmental unit to enforce such unit’s police or regulatory power.” It is obvious some effort was made by Congress to coordinate § 362(b) with § 1478(a) to ensure that certain proceedings that continue unabated by the automatic stay cannot be disrupted by removal to the bankruptcy court by the debtor. But Congress clearly did not achieve complete congruency between § 1478 and § 362. For example, actions exempted from the automatic stay under § 362(b)(7) are generally removable. Nevertheless, we believe it would be anomalous to interpret the “police and regula tory” provision contained in § 1478 so as to permit removal of causes of action that are not subject to the automatic stay because of § 362(b)(4). Thus, we turn to the interpretation of § 362(b)(4). The Ninth Circuit has not ruled whether § 362(b)(4) exempts proceedings before the NLRB from the automatic stay. In In re Bel Air Chateau Hospital, 611 F.2d 1248 (9th Cir.1979), decided under the prior Bankruptcy Act, the court ruled that the automatic stay provisions of Rule ll-44(a) did not apply to an action for unfair labor practices pending before the NLRB. While the court disclaimed any views on the application of § 362(b)(4), it suggested that its decision regarding Rule 11-44 under the Act “appears harmonious” with the Bankruptcy Code and that “(s)ection 362 makes explicit the principles of the old bankruptcy law: stays of regulatory proceedings should not be automatic but are appropriate when it is likely that the court proceedings will threaten the estate’s assets.” Id at 1251. Accord: Shippers Interstate Service Inc., 618 F.2d 9 (7th Cir.1980). In reaching this result, the Bel Air court relied upon the policies enunciated in Nathanson v. NLRB, 344 U.S. 25, 30, 73 S.Ct. 80, 83, 97 L.Ed. 23 (1952): The Supreme Court held that the Board, not the bankruptcy court, should liquidate the amount of the back pay award owed" }, { "docid": "23079793", "title": "", "text": "of the automatic stay provided by 11 U.S.C. § 362(a). The Church also sought damages pursuant to 11 U.S.C. § 362(h). The bankruptcy court denied the motion, holding that even if the revocation was an act that normally would have been stayed, it came within the exception under section 362(b)(4) for acts to enforce police or regulatory powers. The bankruptcy court also ordered the Church to file tax returns for the disputed tax years. The district court affirmed. The district court concluded that although revocation violated the automatic stay provision of section 362(a)(1), it fell within the exception provided by section 362(b)(4). On appeal, a motions panel denied the IRS’s motion to dismiss the appeal for lack of finality, and denied the Church’s motion for stay of the returns order. We consolidated all pending issues for consideration- on the merits. II. The Church makes a persuasive argument that under Delpit v. Commissioner, 18 F.3d 768 (9th Cir.1994), the IRS’s 1991 revocation of the Church’s tax exempt status violated the automatic stay provided by 11 U.S.C. § 362(a). However, we need not reach this issue because the IRS’s revocation of the Church’s tax exempt status clearly falls within an exception to section 362(a). We thus begin our analysis by assuming, without deciding, that the IRS violated the automatic stay in this case. Assuming a stay violation, our first inquiry must be whether the IRS’s administrative actions fall within an exception to the automatic stay. The exception at issue in this case, section 362(b)(4), provides an automatic stay exception for “the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit’s police or- regulatory power.” This section permits government to initiate or continue an action under its police or regulatory powers free of the restrictions of the automatic stay. 3 Collier on Bankruptcy ¶ 362.05[5][b], at 362-58 (15th ed.1996). The theory of this exception is because bankruptcy should not be “a haven for wrongdoers,” the automatic stay should not prevent governmental regulatory, police and criminal actions from proceeding. 3 Collier on Bankruptcy ¶ 362.05[5][a], at" }, { "docid": "16759433", "title": "", "text": "not factually to the scenario and affirmed the order of the bankruptcy court. V. Because these issues require the interpretation and application of legal precepts, the standard of review is plenary. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98 (3d Cir.1981). VI. Section 362(a) of the Bankruptcy Code provides in part: (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.... 11 U.S.C. § 362(a)(1). Section 362(b) creates several exceptions to the automatic stay, including the exception listed under section 362(b)(4): (b) The filing of a petition under section 301, 302, or 303 of this title ... does not operate as a stay— (4) under subsection (a)(1) of this section, of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power.... 11 U.S.C. § 362(b)(4). The Appellants argue that the State’s seizure and forfeiture of the $7,990 amounts to an exercise of its “police or regulatory power,” entitling them to an exception from the scope of the stay provision and that neither the bankruptcy court nor the district court had the authority to litigate the merits of a matter properly before a state court. In addressing the merits of the state court forfeiture proceeding, the district court decided that the State did not exercise its police power in a legitimate fashion, and it therefore vacated the state court default judgment: Section 362(b)(4) exempts from the automatic stay “the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power.” Yet the State must have" }, { "docid": "14000298", "title": "", "text": "The Court also addressed their contentions premised on the Johnson Act and the Rooker-Feldman doctrine regarding the automatic stays of 11 U.S.C. §§ 362(a), 922(a). The positions presented are that the Johnson Act forbids a federal court from interfering with the rate orders of public utilities which would be required in the County’s bankruptcy case and that the bankruptcy case is a collateral attack in federal court on a final order of the Alabama court that appointed the Receiver which violates the Rooker-Feldman doctrine. This Court orally denied all parts of the motions involving the Johnson Act and the Rooker-Feldman doctrine. The denial of the Johnson Act based motions was the jurisdiction of a bankruptcy court is premised on 28 U.S.C. § 1334 which is not within what is required by the Johnson Act. A prerequisite to the Johnson Act’s forbiddance is federal jurisdiction must be based solely on diversity of citizenship or \"repugnance of the order to the Federal Constitution.\" 28 U.S.C. § 1342(1); In re Cajun Elec. Power Co-op., Inc., 185 F.3d 446, 452 n. 7 (5th Cir.1999); Int’l Bhd. of Elec. Workers, Local Union No. 1245 v. Pub. Serv. Comm'n of Nev., 614 F.2d 206, 211 (9th Cir.1980). In the County’s case, neither is involved. For this reason, the Johnson Act does not require abstaining from the exercise of jurisdiction over the County’s bankruptcy case and similarly has no application to the existence or modification of the automatic stays. Supporting the Johnson Act not being an impediment to bankruptcy jurisdiction in this case is that 11 U.S.C. § 943(b)(6) expressly requires that any regulatory approval be obtained as part of the chapter 9 plan confirmation process and the arguments are at odds with the history of bankruptcy filings by entities subject to state rate setting bodies. See, e.g., Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007) (pertaining to Respondent’s chapter 11 bankruptcy); In re Sullivan Cnty. Reg'l Refuse Disposal Dist., 165 B.R. 60 (Bankr.D.N.H.1994) (pertaining to county solid waste disposal districts’ Chapter" }, { "docid": "10333217", "title": "", "text": "a bankruptcy petition automatically stays the commencement or continuation of judicial proceedings against the debtor. See Eastern Refractories Co. Inc., v. Forty Eight Insulations, Inc., 157 F.3d 169, 172 (2d Cir.1998). The automatic stay is a fundamental component of a bankruptcy petition, as it “provides the debtor with a breathing spell from his creditors” and “allows the bankruptcy court to centralize all disputes concerning property of the debtor’s estate in the bankruptcy court so that reorganization can proceed efficiently, unimpeded by uncoordinated proceedings in other arenas.” Shugrue v. Air Line Pilots Ass’n, Int’l (In re Ionosphere Clubs, Inc.), 922 F.2d 984, 989 (2d Cir.1990) (internal citations and quotation marks omitted). Section 362(b)(4) of the Bankruptcy Code provides an exception to the automatic stay for actions by a governmental unit to enforce its police or regulatory power. Specifically, it provides that the filing of a bankruptcy petition does not operate as a stay against: commencement or continuation of an action or proceeding by a governmental unit ... to enforce such governmental unit’s or organization’s police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental unit’s or organization’s police or regulatory power. 11 U.S.C. § 362(b)(4). As the Second Circuit explained, “the purpose of this exception is to prevent a debtor from frustrating necessary governmental functions by seeking refuge in bankruptcy court.” Securities and Exchange Comm’n v. Brennan, 230 F.3d 65, 71 (2d Cir.2000) (internal quotation and citations omitted). “Thus, where a governmental unit is suing a debt- or to prevent or stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damages for violation of such a law, the action of proceeding is not stayed under the automatic stay.” Id. (internal quotation and citations omitted). In attempting to apply the § 362(b)(4) exception, courts look to the purposes of the law that the government seeks to enforce, to distinguish between situations in which a “state acts pursuant to its ‘police and regulatory power,’" }, { "docid": "18595938", "title": "", "text": "encroached upon the exclusive jurisdiction of the bankruptcy court. The debtor had asserted before the bankruptcy court that the automatic stay absolutely precluded any such action by the Department of Agriculture unless leave of court was first obtained. The bankruptcy court had relied upon its general equitable powers, as permitted by the predecessor to Code section 105, to issue the injunction. On appeal, the district court held that neither the automatic stay of Code section 362 nor the general equitable powers of the court under section 105 authorized an injunction against the Department’s administrative proceedings. The court noted that the equitable powers of the bankruptcy court were intended to be used to preserve the assets of the estate, and that where the integrity of the estate was not threatened, the bankruptcy court had no power to enjoin. The court also intimated that the action by the Secretary came within the situation contemplated by the exception to the stay set forth in 11 U.S.C. 362(b)(4). Accordingly, the bankruptcy court’s order enjoining the Department from proceeding was reversed. See In re Farmers & Ranchers Livestock Auction, Inc., 46 B.R. 781, 796 (Bkrtcy.E. D.Ark.1984). This Court is also aware of the policy considerations implicit in the jurisdictional grant of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353 (1984) as set forth in the removal provision, 28 U.S.C. § 1452(a). This statute specifically renders non-removable any proceedings before the United States Tax Court and other civil actions by governmental units to enforce police and regulatory powers. “Congress deemed the public policy underlying these exceptions to outweigh removal.” 1A J. MOORE, MOORE’S FEDERAL PRACTICE ¶ 0.171 at 716 (2d ed. 1984). Although the case at bar does not involve removal of a case from another forum, the principle of noninterference expressed in the removal provisions reinforces this Court’s conclusion that it is without jurisdiction to enjoin the pending administrative proceedings. As this Court has noted, the Secretary is essentially attempting to enforce his regulatory authority. Such actions are permitted by § 362(b)(4) and beyond the scope of this Court’s injunctive powers." }, { "docid": "8170798", "title": "", "text": "evading impending governmental efforts to invoke the governmental police powers to enjoin or deter ongoing debtor conduct which would seriously threaten the public safety and welfare (e.g., environmental and/or consumer protection regulations).” In re McMullen, 386 F.3d 320, 324-25 (1st Cir. 2004) (citing In re First Alliance Mortg. Co., 263 B.R. 99, 107 (B.A.P. 9th Cir.2001) (noting that fundamental policy of § 362(b)(4) is to “prevent[ ] the bankrupt cy court from becoming a haven for wrongdoers”) (internal quotation marks and citation omitted)); see also United States v. Nicolet, Inc., 857 F.2d 202, 207 (3d Cir.1988) (“To combat the risk that the bankruptcy court would become a sanctuary for environmental wrongdoers, among others, Congress enacted the police and regulatory power exception to the automatic stay.”). The parties do not challenge the extraterritorial application of the automatic stay to the U.K. proceedings. See David P. Stromes, Note, The Extraterritorial Reach of the Bankruptcy Code’s Automatic Stay: Theory vs. Practice, 33 Brook J. Int’l. L. 277, 281 (2007) (“Since 1987, United States courts have uniformly upheld the extraterritorial application of the automatic stay.”). In the absence of an exception, the plain language of the automatic stay covers Appellants’ participation in the U.K. proceedings because the U.K. proceedings are an attempt to “assess” a claim against the Debtors that arose pre-petition. The exception on which Appellants rely for their contention that the automatic stay does not preclude their participation in the U.K. proceedings is the police power exception as set forth in § 362(b)(4). Application of that exception requires us to determine in the first instance whether the U.K. proceeding is a “proceeding by a governmental unit” and, necessarily, which entity, if any, is the relevant “governmental unit.” 11 U.S.C. § 362(b)(4). A. Governmental Unit The police power exception to the automatic stay applies to “the commencement or continuation of an action or proceeding” taken by a “governmental unit ... to enforce such governmental unit’s ... police and regulatory power.” 11 U.S.C. § 362(b)(4). We must first determine which entity is the relevant governmental unit in the U.K. proceedings. As we set forth" }, { "docid": "4770755", "title": "", "text": "bar the Missouri state court proceedings; and (2) the bankruptcy court lacks the power to prevent Missouri from enforcing its grain laws by taking possession of the debtors’ Missouri warehouses. Missouri essentially argues: [T]he enforcement of grain laws is a valid exercise of a state’s police and regulatory powers. Section 362(b)(4) of the Bankruptcy Code permits enforcement proceedings initiated by state regulatory authorities to continue even though a bankruptcy petition has been filed. The case law is overwhelming that bankruptcy courts do not have subject matter jurisdiction to enjoin enforcement proceedings initiated by state regulatory authorities. The Bankruptcy Court here is attempting to enjoin Missouri’s enforcement of its grain laws. The Bankruptcy Court is powerless to thwart the Circuit Court’s exclusive jurisdiction over such enforcement proceedings. The October 20, 1980 lawsuit now pending in the Circuit Court of New Madrid County should continue. [Appellant’s Brief at 32.] We reject these contentions. The present stay provisions amplify and clarify provisions of the former bankruptcy law and bankruptcy rules providing for an automatic stay of certain proceedings against debtors. See, e. g., 11 U.S.C. § 148 (repealed 1978); 11 U.S.C. § 428 (repealed 1978); Rules of Bankruptcy Procedure 401, 601, 10-601, 11-44, 12-43 and 13-401. These automatic stays did not apply generally to proceedings affecting the public health and safety or certain governmental regulatory activity. See In re Shippers Interstate Service, Inc., 618 F.2d 9 (7th Cir. 1980) (labor laws); In re Bel Air Chateau Hospital, Inc., 611 F.2d 1248 (9th Cir. 1979) (labor laws); In re National Hospital and Institutional Builders Co., 9 B.R. 948 (S.D.N.Y.1981) (zoning laws); In re Grand Spaulding Dodge, Inc., 5 B.R. 481 (Bkrtcy. N.D.Ill.1980) (consumer protection laws); In re Canarico Quarries, Inc., 466 F.Supp. 1333 (D.Puerto Rico 1979) (environmental protection laws); In re Colonial Tavern, Inc., 420 F.Supp. 44 (D.Mass.1976) (liquor laws). In explaining the section 362(b)(4) exception, the Congressional House Report comments: Paragraph (4) excepts commencement or continuation of actions and proceedings by governmental units to enforce police or regulatory powers. Thus, where a governmental unit is suing a debtor to prevent or stop violation" }, { "docid": "8516674", "title": "", "text": "governmental unit’s ... police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the gov ernmental unit to enforce such governmental unit’s ... police or regulatory-power; 11 U.S.C. § 362(b)(4). This provision permits a governmental unit to “commence or continue any police or regulatory action, including one seeking a money judgment, but it may enforce only those judgments and orders that do not require payment or authorize the government to exercise control over property of the estate.” 3 Collier, supra at 362-59 to 362-60. The legislative history of this section indicates that when a debtor is sued by a governmental unit in order “to prevent or stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damages for violation of such a law, the action or proceeding is not stayed under the automatic stay.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 343 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6299; S.Rep. No. 989, 95th Cong., 2d Sess. 52 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5838 (emphasis added). By allowing such actions to proceed, this exemption prevents the bankruptcy court from becoming a “haven for wrongdoers.” Berg, 230 F.3d at 1167 (citation omitted). Not every police or regulatory action is automatically exempt, however. Enforcement of laws that affect health, welfare, morals, and safety will not be stayed, but regulatory laws that directly conflict with the control of the res or property by the bankruptcy court will be stayed. See In re Universal Life Church, Inc., 128 F.3d 1294, 1297 (9th Cir.1997). The Ninth Circuit applies two tests for determining whether a state’s actions fall within the scope of § 362(b)(4): the “pecuniary purpose” test and the “public policy” test. Id. Under the “pecuniary purpose” test, the court must determine “whether the government action relates primarily to the protection of the government’s pecuniary interest in the debtor’s property or to matters of public safety and welfare.” Id. at 1297 (citing N.L.R.B. v. Continental Hagen Corp., 932 F.2d 828, 833 (9th Cir.1991)). The" }, { "docid": "14713667", "title": "", "text": "11 U.S.C. § 362[a], which provides for one of the fundamental protections afforded to all debtors, namely, imposition of the automatic stay. The stay enjoins all collection and foreclosure actions, permitting either orderly liquidation whereby all creditors are treated equally or an attempt to file a plan of reorganization. Notwithstanding these provisions, § 362[b][4] allows governmental units to commence or continue actions or proceedings to enforce police or regulatory powers. See 11 U.S.C. § 362[b][4], Section 362[b][5] allows the enforcement of an injunction obtained by a governmental unit in furtherance of its police or regulatory powers, even though such an injunction could effectively foreclose the opportunity to reorganize. Thus, while § 362[b][4] and [5] do not explicitly mandate that assets must be sold in compliance with state or federal regulatory provisions, they suggest that Congress did not intend that the objectives of the Bankruptcy Code are to be accomplished at the expense of the general public welfare. Finally, though the assets in question are property of the estate, see 11 U.S.C. § 541, and under the exclusive jurisdiction of the bankruptcy court, see 28 U.S.C. § 1471[e], that fact alone does not suggest that the Court is without the power to deny the sale of property pursuant to § 363[b] unless the sale complies with applicable state and federal regulatory provisions, such as ECRA. Since the Court does have jurisdiction over the property, it can condition approval of the sale on compliance with the relevant regulatory requirements. Neither the provisions of § 363[b] nor its legislative history suggests that sales of assets in bankruptcy should be immune from regulatory provisions which apply inside and outside of bankruptcy and are aimed at promoting the public health and welfare. This position is supported by precedent involving the transfer of state and federal regulatory licenses in bankruptcy proceedings. As noted by the United States Court of Appeals for the Fifth Circuit, “the most substantial and persuasive line of authority establishes that any transfer of a state or federal license or certificate is subject to the continuing jurisdiction and approval of the applicable agency.”" }, { "docid": "17153374", "title": "", "text": "the automatic stay applies to a proceeding pending before it, over which it would otherwise have jurisdiction. Specifically, as applied to this case, we hold that the district court has jurisdiction to decide whether the Attorney General’s section 16 Clayton Act suit comes within the exception to the automatic stay for “police or regulatory power” under § 362(b)(4). B. Exception from the Automatic Stay under § 362(b)(4) The applicability of the automatic stay, and the extent of the “police or regulatory power” exception under § 362(b)(4), are questions of law that we consider de novo. In re Hines, 198 B.R. 769 (9th Cir.BAP1996), rev’d on other grounds by 147 F.3d 1185 (9th Cir.1998) (whether an act falls within statutory exception to the stay is reviewed de novo). The record is sufficiently complete that we may decide the question even though the district court did not. Chang v. United States, 327 F.3d 911, 928 (9th Cir.2003). Section 362(b)(4) provides that the filing of a bankruptcy petition does not operate as an automatic stay “of the commencement or continuation of an action or proceeding by a governmental unit ... to enforce such governmental unit’s ... police or regulatory power.” 11 U.S.C. § 362(b)(4). A government unit need not affirmatively seek relief from the automatic stay to initiate or continue an action subject to the exemption. Edward Cooper Painting, 804 F.2d at 939. The theory of the exception is that bankruptcy should not be “ ‘a haven for wrongdoers.’ ” Universal Life Church, Inc. v. United States (In re Universal Life Church), 128 F.3d 1294, 1297 (9th Cir.1997) (citations omitted). The “police or regulatory power” exception allows the enforcement of laws affecting health, welfare, morals, and safety despite the pendency of the bankruptcy proceeding. The exception applies, for example, to suits to determine a federal income tax exemption, see id.; to enforce federal labor laws, see Twin Cities Electric, 907 F.2d at 109; to enforce state bar disciplinary rules, see Wade v. State Bar of Arizona, 948 F.2d 1122 (9th Cir.1991); to enforce federal employment discrimination laws, see EEOC v. Hall’s Motor Transit" }, { "docid": "8516673", "title": "", "text": "filing of a bankruptcy petition operates as a stay, applicable to all entities, of “the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor_”§ 362(a)(1). The general policy behind the automatic stay is to grant complete and immediate, albeit temporary, relief to the debtor from creditors, and to prevent dissipation of the debtor’s assets before orderly distribution to all creditors can be effected. S.E.C. v. Brennan, 230 F.3d 65, 71 (2nd Cir.2000). A main purpose of the stay is to protect the priority of payments to creditors. 3 Collier On Bankruptcy § 362.05[5][b] at 362-61 (15th ed.2001). The Code provides certain exceptions to the automatic stay, which are read narrowly. In re Dunbar, 235 B.R. 465, 470 (9th Cir. BAP 1999), aff'd, 245 F.3d 1058 (9th Cir.2001). Section 362(b)(4) provides an exception for certain governmental police and regulatory actions. Section 362(b)(4) provides that the filing of a petition does not stay the commencement or continuation of an action or proceeding by a governmental unit ... to enforce such governmental unit’s ... police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the gov ernmental unit to enforce such governmental unit’s ... police or regulatory-power; 11 U.S.C. § 362(b)(4). This provision permits a governmental unit to “commence or continue any police or regulatory action, including one seeking a money judgment, but it may enforce only those judgments and orders that do not require payment or authorize the government to exercise control over property of the estate.” 3 Collier, supra at 362-59 to 362-60. The legislative history of this section indicates that when a debtor is sued by a governmental unit in order “to prevent or stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damages for violation of such a law, the action or proceeding is not stayed under the automatic stay.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 343 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6299; S.Rep. No. 989, 95th Cong.," }, { "docid": "17153375", "title": "", "text": "or continuation of an action or proceeding by a governmental unit ... to enforce such governmental unit’s ... police or regulatory power.” 11 U.S.C. § 362(b)(4). A government unit need not affirmatively seek relief from the automatic stay to initiate or continue an action subject to the exemption. Edward Cooper Painting, 804 F.2d at 939. The theory of the exception is that bankruptcy should not be “ ‘a haven for wrongdoers.’ ” Universal Life Church, Inc. v. United States (In re Universal Life Church), 128 F.3d 1294, 1297 (9th Cir.1997) (citations omitted). The “police or regulatory power” exception allows the enforcement of laws affecting health, welfare, morals, and safety despite the pendency of the bankruptcy proceeding. The exception applies, for example, to suits to determine a federal income tax exemption, see id.; to enforce federal labor laws, see Twin Cities Electric, 907 F.2d at 109; to enforce state bar disciplinary rules, see Wade v. State Bar of Arizona, 948 F.2d 1122 (9th Cir.1991); to enforce federal employment discrimination laws, see EEOC v. Hall’s Motor Transit Co., 789 F.2d 1011 (3rd Cir.1986); and to enforce state consumer protection laws, see In re First Alliance Mortgage, 263 B.R. 99 (B.A.P. 9th Cir.2001). Mirant did not argue in the district court that the Attorney General’s Clayton Act suit fell outside the § 362(b)(4) exception. In its initial briefing before us, Mir-ant similarly did not argue that the suit fell outside the exception, even though the Attorney General had briefed the question. After oral argument, we asked the parties to submit supplemental briefing in order to be sure that Mirant had been given a full opportunity to address the question. Mirant now makes two arguments to us. First, it argues that the § 362(b)(4) exception does not apply because the statutory reference to “such government unit’s police or regulatory power” means that the government in question must be suing in furtherance of its own police and regulatory power. Mirant contends that the state Attorney General is not doing so in this case because his only remaining claim is for injunctive relief under section 16" }, { "docid": "12397767", "title": "", "text": "automatic stay provision’s applicability to case pending in Texas district court). Cf. EEOC v. Hall’s Motor Transport Co., 789 F.2d 1011, 1013 (3d Cir.1986) (filing of bankruptcy petition does not act as automatic stay of suit under Title VII). Finding that we have jurisdiction to determine the applicability of the automatic stay provision to the pending petition for enforcement, we turn to the question whether the automatic stay provision applies to the instant action. B. APPLICATION OF THE AUTOMATIC STAY 11 U.S.C. § 362, the automatic bankruptcy stay provision, generally stays the commencement or continuation of judicial proceedings against the debtor upon the filing of a Chapter 11 petition, including the en forcement of judgments. The section contains certain exceptions: (b) The filing of a petition under section 301, 302, or 303 of this title ... does not operate as a stay— (4) under subsection (a)(1) of this section, of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power; (5) under subsection (a)(2) of this section, the enforcement of judgment, other than a money judgment, obtained in an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power[.] 11 U.S.C. § 362(b)(4), (5). Because the Secretary had not commenced the instant proceeding before Morysville filed its petition, only paragraph (4) is implicated. The legislative history explains that paragraph (4) provides an exception to the automatic stay “where a governmental unit is suing a debtor to stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damages for violation of such a law.” H.R.Rep. No. 595, 95th Cong., 2nd Sess. 343, reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6299 (emphasis supplied); see also S.Rep. No. 989, 95th Cong., 2nd Sess. 52, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5838. This court has therefore found that paragraph (4), together with paragraph (5), exempts from the automatic stay equitable actions brought by state and federal agencies to correct violations of regulatory statutes enacted" }, { "docid": "21634242", "title": "", "text": "Inc. v. Mantia, 683 F.3d 757, 760 (6th Cir. 2012). “The purpose of the automatic stay is to ‘give[] the debtor a breathing spell from his creditors.... It permits the debt- or to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him to bankruptcy.’” In re Robinson, 764 F.3d 554, 559 (6th Cir. 2014) (quoting H.R. Rep. No. 95-595, at 340 (1977), as reprinted in 1978 U.S.C.C.A.N. 5963, 6296-97). However, significantly and directly on point here, “the automatic stay protection does not apply to all cases; there are statutory exemptions, and there are non-statutory exceptions.” Dominic’s Rest., 683 F.3d at 760; see. e.g., Seiko Epson Corp. v. Nu-Kote Int’l, Inc., 190 F.3d 1360, 1364 (Fed. Cir. 1999) (“[P]ro-ceedings that do not threaten to deplete the assets of the debtor need not be stayed.”), reh’g denied (Oct. 19, 1999). One such statutory exception to the automatic stay, enumerated in 11 U.S.C. § 362(b)(4), relates to the enforcement of the Government’s police or regulatory powers. In order to prevent abuse by debtors improperly seeking refuge under the bankruptcy laws, Congress provided that certain governmental actions, including the “continuation of an action or proceeding by a governmental unit ... to enforce such governmental unit’s or organization’s police and regulatory power,” are exempt from the automatic stay provisions of 11 U.S.C. § 362(a). Id. § 362(b)(4); see United States v. Nicolet, Inc., 857 F.2d 202, 207 (3d Cir. 1988); 3 Colliek on Bankruptcy ¶ 362.05[5][a] (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2017). “[T]he policy behind § 362(b)(4) is ‘to prevent the bankruptcy court from becoming a haven for wrongdoers.’” SEC v. Towers Fin. Corp., 205 B.R. 27, 30 (S.D.N.Y. 1997) (quoting SEC v. Elmas Trading Corp., 620 F.Supp. 231, 240 (D. Nev. 1985), aff'd, 805 F.2d 1039 (9th Cir. 1986)); see also In re Bilzerian, 146 B.R. 871, 873 (Bankr. M.D. Fla. 1992) (citing the legislative history of § 362(b)(4) for the same). To ascertain whether the proceeding at issue falls within the scope of § 362(b)(4), courts have applied two" } ]

[ { "docid": "11310957", "title": "", "text": "that report. The report and the accompanying testimony, in turn, simply recounted statements made by the girlfriend to the preparing officer during a telephone interview. In essence, then, the district court’s finding was based upon hearsay evidence. Mr. Fennell acknowledges that reliable hearsay may be used in the determination of a sentence. See U.S.S.G. § 6A1.3 & comment (1993); United States v. Beaulieu, 893 F.2d 1177, 1179-81 (10th Cir.), cert. denied, 497 U.S. 1038, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990); see also United States v. Ortiz, 993 F.2d 204, 207-08 (10th Cir.1993); United States v. Reid, 911 F.2d 1456, 1464 (10th Cir.1990), cert. denied, 498 U.S. 1097, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991). He contends, however, that the evidence relied upon by the district court lacks the minimal indicia of reliability required by the Sentencing Guidelines. See Beaulieu, 893 F.2d at 1181. We agree. During the sentencing hearing, the preparing officer admitted that the § 2K2.1(b)(5) enhancement was based solely upon unsworn allegations made by the girlfriend during the telephone interview. Tr., Vol. II, at 10-11. These statements might well be credible; potential truth, however, does not mitigate the almost total absence of indicia of reliability. The girlfriend did not prepare a sworn affidavit in support of her allegations. The preparing officer did not have an opportunity to observe her demeanor during the interview and therefore could not form any opinion as to her veracity. The Record, moreover, contains no other evidence that corroborates the account given the preparing officer. The facts surrounding Mr. Fennell’s arrest, while suggesting that the machine gun was fired during an altercation between Mr. Fennell and his girlfriend, do not answer the question of whether Mr. Fennell’s actions constituted a felony or a misdemeanor. It is significant, in this context, that state authorities originally charged Mr. Fennell with misdemeanor assault. Under Oklahoma law, an assault “with any kind of firearm” is a felony if it is accompanied by “the intent to do bodily harm” or the “intent to injure” someone. Okla.Stat.Ann. üt. 21, § 645. The decision to charge Mr. Fennell with misdemeanor" } ]

[ { "docid": "8988152", "title": "", "text": "Fennell, we held that the unsworn testimony of a girlfriend taken over the telephone by a probation officer lacked “the minimal indicia of reliability required” by the Guidelines to support a sentencing enhancement. Id. at 813. In so doing, we stressed that the officer interviewing the girlfriend “did not have an opportunity to observe her demeanor during the interview and therefore could not form any opinion as to her veracity.” Id. Further, we concluded “no other evidence” corroborated the preparing officer’s account. Id. At least three important differences are present here. First, Officers McCleerey and Spanos had the opportunity to observe Ms. Smith’s and Mr. Spruell’s demeanor and form an opinion regarding their veracity. Second, two witnesses, Ms. Smith and Mr. Spruell, each corroborated that Defendant pointed a loaded shotgun at Mr. Spruell. Finally, Mr. Spruell’s conversation with Officer Cruser over the telephone, while insufficient by itself to establish that Defendant committed felony menacing, was consistent with Mr. Spruell’s and Ms. Smith’s previous face-to-face account with the other two officers. These differences are sufficient to vest some minimal confidence in the reliability of the hearsay statements before the district court. We hold that the district court did not clearly err in relying on them. B. Next, we consider whether we must remand for a more thorough explanation of the district court’s finding that Defendant committed felony menacing. Rule 32(i)(3)(B) requires a district court “for any disputed portion of the presentence report or other controverted matter” to “rule on the dispute or determine that a ruling is unnecessary” because it will not affect a defendant’s sentence. The parties dispute the appropriate standard of review for an alleged Rule 32(i)(3)(B) violation. Defendant contends that we conduct a plenary review for compliance with the Federal Rules of Criminal Procedure. The Government counters that plain error should apply because Defendant failed to lodge a separate objection alleging noncompliance with Rule 32(i)(3)(B) after the district court found that he committed felony menacing. In United States v. Williamson, 53 F.3d 1500, 1527 (10th Cir.1995), we applied plain-error review when a defendant neglected to make a separate" }, { "docid": "2341360", "title": "", "text": "n. 4; see also U.S.S.G. § 6A1.3(a) (sentencing court may consider any relevant evidence “provided that the information has sufficient indicia of reliability to support its probable accuracy.”). Defendant contends the testimony of the detectives and the state prosecutor, in conjunction with the transcripts of the accusers’ interviews with the detectives, lacks reliability. He emphasizes the lack of physical evidence or other corroboration that the sexual abuse occurred, apart from the testimony of the complaining witnesses who were not subject to cross-examination. He also maintains the district court erred by relying on law enforcement agents to determine the credibility of the complaining witnesses. But the facts in Cook are similar to this case. There we upheld a sentencing enhancement based on a district court finding that the defendant had more likely than not committed felony menacing, a charge which had been brought against the defendant in state court but was later withdrawn. Cook, 550 F.3d at 1294. The district court based its finding on the following: an affidavit of one of the police officers who interviewed the victims of the alleged menacing; the narrative remarks of another police officer describing the events surrounding the defendant’s arrest from a police report, which was based on a phone conversation with one of the complaining witnesses; and an Alcohol, Tobacco and Firearms Report of Investigation, which also related the accusations of the victims. Id. at 1295-96. We held in Cook that this evidence exhibited the necessary indicia of reliability based on three factors. First, the officers “had the opportunity to observe [the victims’] demeanor and form an opinion regarding their veracity.” Id. at 1297. Second, the complaining witnesses each corroborated the sequence of events that had transpired. Id. And third, at a later date, one of the complaining witnesses retold the same version of events to another police officer over the phone. Id. Our decision in United States v. Fennell, 65 F.3d 812 (10th Cir.1995), is not to the contrary. In determining the proper sentence for Mr. Fennell, who had pled guilty to possession of an automatic machine gun, the district court found" }, { "docid": "2341354", "title": "", "text": "to the psychological harm the victims would suffer if they testified at trial. Specifically, the PSR stated that the victim’s family members did not want the children to testify. Mr. Caiba-Antele admitted the procedural history of the charges as described in the PSR, but filed a written objection to their veracity. Contending he was innocent of the acts alleged, he asserted the court should not consider those prior charges in sentencing him because he had not been convicted and because, absent direct testimony from the alleged victims, the evidence that he had committed the charged crimes lacked sufficient indicia of reliability. The district court held an evidentiary hearing at which two detectives and a state prosecutor who had been involved in the 2007 case against Mr. Caiba-Antele testified. Both detectives testified at length about the interviews they had conducted with the children, and the transcripts of those interviews were entered into evidence. Each detective independently testified that he found the children’s accusations against Mr. Caiba-Antele credible because of the level of detail contained in the allegations, the consistency of their statements, and the children’s demeanor during the interviews. Both detectives had significant past experience working with child victims of abuse and sexual molestation. The state prosecutor confirmed in her testimony that the charges against Mr. Caiba-Antele were dropped due to the risk of psychological harm to one of the child witnesses, who had recently suffered a mental breakdown and attempted suicide, and because the other child witness wanted to move on with her life and was no longer willing to testify. Mr. Caiba-An-tele objected to the detectives’ testimony as hearsay too unreliable to establish his guilt of the charged crimes, particularly without an opportunity to cross-examine his accusers. He did not testify at the hearing. The district court issued a memorandum opinion overruling Mr. Caiba-Antele’s objections to the PSR. The court found the testimony of the detectives, which was based on their first-hand observations of the children and their professional experience with other sexually abused children, to be credible. The court held that Mr. Caiba-Antele had more likely than not" }, { "docid": "2757265", "title": "", "text": "HAMILTON, Circuit Judge. Todd Peterson appeals from the denial of his petition for a writ of habeas corpus challenging his conviction in Wisconsin state court for sexual assault of a child. His petition raised multiple challenges to the conviction, but we granted a certificate of appealability as to only one: whether his trial attorney’s failure to move to suppress a statement Peterson made to an off-duty police officer deprived him of his Sixth Amendment right to counsel. See 28 U.S.C. § 2253(c). We conclude that the state court did not unreasonably apply the clearly established law of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in evaluating counsel’s performance. Reasonable jurists could disagree as to application of both the performance element and the prejudice element of the Strickland standard. We therefore affirm the district court’s denial of Peterson’s petition. Along the way, we explain the proper procedure for requesting amendments to a certificate of appealability. I. Factual and Procedural Background A Wisconsin jury convicted Todd Peterson of first degree sexual assault of a child. See Wis. Stat. § 948.02(l)(e). The jury heard testimony from Peterson’s victim, a ten-year-old boy we will call M.W. The boy testified that when he was seven years old he had slept over at Peterson’s house while his mother was away at a church retreat, and that on that occasion Peterson had abused him sexually. Although he regularly saw Peterson after that, M.W. kept the abuse a secret for more than a year. M.W. finally unburdened himself to two friends and his older sister one day while Peterson was at the boy’s house. The children brought the story to Trisha Liethen, an off-duty police officer who was also at the house volunteering as a mentor to M.W.’s sister through the Big Brothers Big Sisters program. In her trial testimony, Liethen described calling Peterson up from the basement and confronting him with the story, which she assumed had taken place recently. Instead of appearing surprised or denying the allegation, Peterson corrected her by saying, “that wasn’t when that happened.” At that point" }, { "docid": "2341355", "title": "", "text": "allegations, the consistency of their statements, and the children’s demeanor during the interviews. Both detectives had significant past experience working with child victims of abuse and sexual molestation. The state prosecutor confirmed in her testimony that the charges against Mr. Caiba-Antele were dropped due to the risk of psychological harm to one of the child witnesses, who had recently suffered a mental breakdown and attempted suicide, and because the other child witness wanted to move on with her life and was no longer willing to testify. Mr. Caiba-An-tele objected to the detectives’ testimony as hearsay too unreliable to establish his guilt of the charged crimes, particularly without an opportunity to cross-examine his accusers. He did not testify at the hearing. The district court issued a memorandum opinion overruling Mr. Caiba-Antele’s objections to the PSR. The court found the testimony of the detectives, which was based on their first-hand observations of the children and their professional experience with other sexually abused children, to be credible. The court held that Mr. Caiba-Antele had more likely than not committed the acts of sexual abuse and rape he had been accused of, and that the evidence of these acts exhibited sufficient indicia of reliability. The court also calculated that if, hypothetically, Mr. Caiba-Antele had been convicted of the charges he faced in state court, his guidelines sentencing range for reentry of a removed alien would have been forty-six to fifty-seven months, in contrast to the range of eight to fourteen months because the charges were dropped. At a final sentencing hearing, the district court heard arguments from both parties and correctly noted the applicable offense level, criminal history category, guideline sentencing range of eight to fourteen months, and the statutory maximum sentence of ten years. The court then examined each of the 18 U.S.C. § 3553(a) sentencing factors in light of the facts contained in the PSR, including the need for the sentence imposed to reflect the seriousness of the crime, the importance of deterrence and the necessity of protecting the public from future crimes. In light of these sentencing factors and the earlier" }, { "docid": "12080142", "title": "", "text": "purpose of placing her in his custody, and to supervise the victim after placement. She testified that, based upon her continuing contacts with the victim, she believed the victim was a truthful person. She also compared the victim’s personality to the personalities of other sexually abused children. She had not discussed the specific allegations regarding sexual misconduct with the victim although she was aware of them from other sources. She opined that, in this case, there could be no other explanation for the victim’s personality except sexual abuse. The second witness was the District Intake Counselor of the Florida Department of Health and Rehabilitative Services. She initiated an investigation following receipt of the report of the victim's abuse and filed the judicial papers for the detention hearing. She testified that she, herself, had interviewed and had observed others interview the victim. Based on these contacts, she opined that the victim had made truthful statements. She also related her opinion to her experience with other cases of reported child abuse. The third witness called by the Government appeared as an expert in clinical and forensic psychology and sex offenses. After being so accepted by the military judge, he testified at some length about the characteristics of the incest-family’s interrelations. He then related this background specifically to the victim, based upon some 31 interviews with her for treatment occurring after the reported abuse. Based upon his own experience and his contacts with the victim, he opined that she was truthful in her allegations and that “her personality and her mental state ... [were] consistent with having been sexually abused.” Perhaps most damaging was his testimony on cross-examination: A. I have not known of any cases where a child has accused a parent of incest where it has not been so. Q. But surely there are some cases. A. I’m not sure. I know other professions who say, “No.” I’m not convinced that it never happens. Never is a strong word. I think it’s rare. Several observations stand out from this expert and “quasi-expert” testimony. First, all of the witnesses skirt the “ultimate" }, { "docid": "11310956", "title": "", "text": "McKAY, Circuit Judge. Pursuant to a plea bargain struck with the government, Mr. Fennell pled guilty to possession of an automatic machine gun in violation of 18 U.S.C. § 922(o) and 18 U.S.C. § 2. He does not here contest his guilt. Mr. Fennell does, however, take issue with the sentence imposed upon him by the district court. The presentence report, concluding that Mr. Fennell had used his machine gun in connection with a felonious assault, recommended a sentence based upon the four-level enhancement required by § 2K2.1(b)(5) of the Sentencing Guidelines. The district court, over the objections of Mr. Fennell, agreed that the evidence supported the enhancement and sentenced Mr. Fennell accordingly. Mr. Fennell appeals this ruling. The district court found by a preponderance of the evidence that Mr. Fennell had fired his machine gun at his former girlfriend — an act which admittedly would constitute a felony within the meaning of § 2K2.1(b)(5). The district court based its finding upon the presentence report and upon the testimony of the probation officer who prepared that report. The report and the accompanying testimony, in turn, simply recounted statements made by the girlfriend to the preparing officer during a telephone interview. In essence, then, the district court’s finding was based upon hearsay evidence. Mr. Fennell acknowledges that reliable hearsay may be used in the determination of a sentence. See U.S.S.G. § 6A1.3 & comment (1993); United States v. Beaulieu, 893 F.2d 1177, 1179-81 (10th Cir.), cert. denied, 497 U.S. 1038, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990); see also United States v. Ortiz, 993 F.2d 204, 207-08 (10th Cir.1993); United States v. Reid, 911 F.2d 1456, 1464 (10th Cir.1990), cert. denied, 498 U.S. 1097, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991). He contends, however, that the evidence relied upon by the district court lacks the minimal indicia of reliability required by the Sentencing Guidelines. See Beaulieu, 893 F.2d at 1181. We agree. During the sentencing hearing, the preparing officer admitted that the § 2K2.1(b)(5) enhancement was based solely upon unsworn allegations made by the girlfriend during the telephone interview. Tr., Vol." }, { "docid": "2341362", "title": "", "text": "by a preponderance of the evidence that the defendant had fired his machine gun at his girlfriend, an act which qualified him for a four-level enhancement under the sentencing guidelines. Id. at 813. The only evidence the district court in Fennell considered regarding this alleged assault was the pre-sentence report and testimony from the probation officer who had prepared the report. Id. Both the report and the officer’s testimony merely recounted statements made to the officer by the defendant’s girlfriend during a phone interview. Id. We held that this evidence lacked sufficient indicia of reliability because, unlike here, it was uncorroborated and because the preparing officer “did not have an opportunity to observe [the complaining witness’] demeanor during the interview and therefore could not form any opinion as to her veracity.” Id. The evidence relied upon by the district court in the instant case manifests sufficient indicia of reliability based on the factors we discussed in Cook, and which were missing in Fennell. The detectives who testified regarding the sexual assault charges had observed the victims firsthand and were able to form reasoned opinions regarding their veracity. Like Cook, and unlike Fennell, the testimony of each victim here corroborated the type and instances of abuse the other children said were perpetrated against them by Mr. Cai-ba-Antele, and none of the victims changed their version of events or recanted after the initial interviews were conducted. This case is thus closer to Cook than to Fennell. In sum, we conclude the evidence relied upon by the district court to find that Mr. Caiba-Antele had more likely than not committed the sexual assaults described in the PSR meets the standard of minimum indicia of reliability. Accordingly, the court did not abuse its discretion in relying on that evidence to determine Mr. Caiba-Antele’s sentence. We AFFIRM." }, { "docid": "6311857", "title": "", "text": "Franks hearing was warranted. Looking at the factors that inform a Franks-h.os.rmg determination, see Mullins, 803 F.3d at 863, we noted that the “tip was minimally corroborated,” and the informant had “provided little detail.” Glover, 755 F.3d at 817. Moreover, the “checkered past” of the informant called into question the reliability of the information, namely Doe may have “report[ed] Glover merely because of gang rivalries.” Id. Under these circumstances, “[t]he complete omission of information regarding Doe’s credibility [was] insurmountable.” Id. at 816. Unlike the information in Glover, however, here the probable cause affidavit contained specific information concerning Peabody and his reliability as a witness. As well, the information provided by Peabody differed in quantity and quality from that provided in Glover: Peabody gave highly detailed descriptions of Mr. Hancock’s activities based on Peabody’s frequent, personal interactions with Mr. Hancock. Furthermore, Mr. Hancock’s criminal activities were corroborated by the text messages from Davis’s phone, Lowrie’s report of assault to the police, and Mr. Hancock’s own prior statements to Investigator Drost, in which he referenced his gang affiliation and admitted to a long line of arrests. We therefore conclude, as we did in Mullins, that this other evidence of reliability distinguishes the present situation from Glover. See Mullins, 803 F.3d at 864 (holding that Glover was “readily distinguishable” because “the search warrant in Glover was issued based almost entirely on the informant’s report,” but “[h]ere, by contrast, ... the critical information was corroborated by the officers’ firsthand observations”). We also note that, in the case before us, there are not the same type of concerns with Peabody’s credibility as there were with the informant in Glover. Specifically, there is no evidence that Peabody was involved in a different—and perhaps rival—gang, that he had attempted to de-ceivé the police, or that he was expecting remuneration for his cooperation. Here, the magistrate judge comprehensively reviewed the totality of the circumstances and concluded that a Franks hearing was not warranted. We therefore affirm the district court’s denial of Mr. Hancock’s request for a Franks hearing. B. Mr. Hancock renews his claim that his, Colorado convictions" }, { "docid": "2543316", "title": "", "text": "Investigator Antoinette Guzman,.who interviewed the victim six months after the incident. The government stated that the victim herself refused to testify—notwithstanding receipt of a subpoena and an offer of appointed counsel and immunity—based on her professed fear of retaliation by Harris or his associates, all of whom continued to live in the victim’s neighborhood. It argued that this fear, coupled with the reliability of the victim’s statements, constituted good cause to conclude that the interest of justice did not require the victim’s appearance at the hearing. See Fed. R. Crim. P. 32.1(b)(2)(C). The district court agreed. It credited the proffered fear based on the victim’s consistent expression of it, and concluded that Harris’s confrontation interest was entitled to little weight by comparison. Further,, it found the hearsay statements reliable because they bore overall consistency, the first one was made near the time of the assault- following ■ a 911 call, and the account was corroborated by the responding officer’s observations of physical injuries consistent with the reported assault. 2. Violation Findings a. Narcotics Trafficking While on Supervision In support of the narcotics trafficking violation, two police officers testified to witnessing Harris exchange drugs for money, and to recovering the exchanged drug packet, the contents of which tested positive for cocaine. The district court deemed this testimony credible and sufficient, by itself, to establish the charged violation. It also found the conclusion corroborated by further credited police and physician testimony establishing that, after arrest, Harris attempted to conceal another packet of cocaine still in his possession by ingesting it. b. Assault While on Supervision In support of the assault-based violation, law enforcement officials testified that on three occasions—the day of the assault, two weeks later, and six months thereafter—the victim recounted how, in the early morning hours of July 25, 2014, while she was dancing with a group of people, Harris smacked her hard on the buttocks. See App’x 209-10. When she verbally confronted Harris about that conduct, “he punched her in the mouth with a closed fist.” Id. at 210. The district court credited the victim’s hearsay accounts not only" }, { "docid": "164414", "title": "", "text": "at the time of the interview, and she was reporting events that purportedly occurred when she was three. Common experience counsels extreme caution in crediting detailed recollections of events said to have occurred at such an extremely young age, particularly those reported over a year later by a child still very young. See Shaw, 464 F.3d at 624. Second, A.B. changed her answers at several points during the interview. She began by stating that no one had touched her in a way she didn’t like, but proceeded to make several allegations — in response to specific questions from Jensen — that Paul had touched her in ways she “wouldn’t” or “didn’t” like. She also initially denied that Paul had licked her or that she had licked him, but then reversed herself on both counts by the end of the interview, claiming both that “[Paul] actually has licked me” and that “[she] did lick his poo poo.” Third, A.B. at one point confused Paul with another boy. In response to a question about Paul, A.B. stated that “Preston puts his poo poo in my pee pee.” She did so right after denying that Paul’s penis had touched her face, or that she had touched Paul’s penis. These three circumstances, considered together, point to the need for further investigation and corroboration to establish probable cause. In cases involving very young child victims, the courts have repeatedly emphasized the need for some evidence in addition to the statements of the victim to corroborate the allegations and establish probable cause. See Shaw, 464 F.3d at 624 (discussing this line of cases and noting that, in each case, “the court specifically noted that a child’s testimony was not the only evidence supporting probable cause”). The need for further investigation was particularly acute in this case, in which a four-year-old victim struggled to provide a coherent description of abuse that allegedly occurred eighteen months earlier, when she was three years old. Cf. id. (“We are not aware ... of any situation in which the uncorroborated hearsay statement of a child as young as three, standing alone," }, { "docid": "2341359", "title": "", "text": "jury or admitted by the defendant. He concedes, however, that this argument is foreclosed by binding precedent. Aplt. Br. at 12. See United States v. Redcorn, 528 F.3d 727, 745 (10th Cir.2008) (applying United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to deny similar Sixth Amendment challenge); see also United States v. Cook, 550 F.3d 1292, 1295 (10th Cir.2008) (uncharged conduct need only be proved by a preponderance of the evidence for sentencing purposes). Because “[w]e are bound by the precedent of prior panels absent en banc reconsideration or a superceding contrary decision by the Supreme Court,” Mr. Caiba-Antele’s Sixth Amendment claim must fail. In re Smith, 10 F.3d 723, 724 (10th Cir.1993). Mr. Caiba-Antele also challenges the upward variance under the Due Process Clause, claiming that the sentence was procedurally unreasonable because it was based on evidence that lacked sufficient indicia of reliability. In sentencing, a district court may rely on hearsay evidence as long as the evidence is sufficiently reliable. See Cook, 550 F.3d at 1296 & n. 4; see also U.S.S.G. § 6A1.3(a) (sentencing court may consider any relevant evidence “provided that the information has sufficient indicia of reliability to support its probable accuracy.”). Defendant contends the testimony of the detectives and the state prosecutor, in conjunction with the transcripts of the accusers’ interviews with the detectives, lacks reliability. He emphasizes the lack of physical evidence or other corroboration that the sexual abuse occurred, apart from the testimony of the complaining witnesses who were not subject to cross-examination. He also maintains the district court erred by relying on law enforcement agents to determine the credibility of the complaining witnesses. But the facts in Cook are similar to this case. There we upheld a sentencing enhancement based on a district court finding that the defendant had more likely than not committed felony menacing, a charge which had been brought against the defendant in state court but was later withdrawn. Cook, 550 F.3d at 1294. The district court based its finding on the following: an affidavit of one of the police officers who" }, { "docid": "164413", "title": "", "text": "Jensen done so, the Stoots contend, he quickly would have learned that A.B. was “a confused young girl, with a long history of hallucinations, vaginal issues, and reports of sexual abuse by other persons,” whose statements, standing alone, were not sufficiently reliable to constitute probable cause. We agree with the Stoots that A.B.’s statements were not sufficiently reliable to establish probable cause to seize Paul. Law enforcement officers may obviously rely on statements made by the victims of a crime to identify potential suspects. But such information does not, on its own, support a finding of probable cause if the information is not reasonably trustworthy or reliable. See Cortez v. McCauley, 478 F.3d 1108, 1116-22 (10th Cir.2007) (en banc); United States v. Shaw, 464 F.3d 615, 623-26 (6th Cir.2006); Clay v. Conlee, 815 F.2d 1164, 1168 (8th Cir.1987). In this case, three factors, taken together, compel the conclusion that the statements made by A.B. to Jensen were not sufficiently trustworthy or reliable to establish probable cause on their own. First, A.B. was four years old at the time of the interview, and she was reporting events that purportedly occurred when she was three. Common experience counsels extreme caution in crediting detailed recollections of events said to have occurred at such an extremely young age, particularly those reported over a year later by a child still very young. See Shaw, 464 F.3d at 624. Second, A.B. changed her answers at several points during the interview. She began by stating that no one had touched her in a way she didn’t like, but proceeded to make several allegations — in response to specific questions from Jensen — that Paul had touched her in ways she “wouldn’t” or “didn’t” like. She also initially denied that Paul had licked her or that she had licked him, but then reversed herself on both counts by the end of the interview, claiming both that “[Paul] actually has licked me” and that “[she] did lick his poo poo.” Third, A.B. at one point confused Paul with another boy. In response to a question about Paul, A.B. stated" }, { "docid": "8988151", "title": "", "text": "a round, pointed the gun at him, and said, “I’m an OG.” Ms. Smith said she stepped in front of Defendant, pushed the gun into the air, and kicked Defendant out the open door into the apartment hallway. Defendant left, and Ms. Smith called the police. Officer Cruser’s narrative remarks indicate that he telephoned Mr. Spruell after Officers McCleerey and Spanos interviewed him, confirming that Defendant pointed a loaded shotgun at Mr. Spruell. Finally, the ATF report, based on Aurora Police Department reports, recounts the essential details of this encounter, i.e., that Defendant pointed a loaded shotgun at Mr. Spruell. While the due process clause protects a defendant’s right not to be sentenced on the basis of materially incorrect information, hearsay statements may be considered at sentencing if they bear “some minimal indicia of reliability.” United States v. Browning, 61 F.3d 752, 755 (10th Cir. 1995). Defendant contends that our decision in United States v. Fennell, 65 F.3d 812 (10th Cir.1995) demonstrates the documents before the district court could not clear this low hurdle. In Fennell, we held that the unsworn testimony of a girlfriend taken over the telephone by a probation officer lacked “the minimal indicia of reliability required” by the Guidelines to support a sentencing enhancement. Id. at 813. In so doing, we stressed that the officer interviewing the girlfriend “did not have an opportunity to observe her demeanor during the interview and therefore could not form any opinion as to her veracity.” Id. Further, we concluded “no other evidence” corroborated the preparing officer’s account. Id. At least three important differences are present here. First, Officers McCleerey and Spanos had the opportunity to observe Ms. Smith’s and Mr. Spruell’s demeanor and form an opinion regarding their veracity. Second, two witnesses, Ms. Smith and Mr. Spruell, each corroborated that Defendant pointed a loaded shotgun at Mr. Spruell. Finally, Mr. Spruell’s conversation with Officer Cruser over the telephone, while insufficient by itself to establish that Defendant committed felony menacing, was consistent with Mr. Spruell’s and Ms. Smith’s previous face-to-face account with the other two officers. These differences are sufficient to" }, { "docid": "2341353", "title": "", "text": "Caiba-Antele of sexually abusing them multiple times over the course of several years. The children, as well as their parents, were taken to the Las Cruces Police Department for further interviews. During the interviews, the children each described in detail how Mr. Caiba-Antele had raped and sexually molested them numerous times over several years in Phoenix, Arizona and later in Las Cruces, New Mexico. The fifteen-year-old victim told investigators that Mr. Caiba-Antele said he wanted to impregnate her because his girlfriend was unable to have more children. The PSR indicated that Mr. Caiba-An-tele was indicted by a New Mexico grand jury and charged in counts one through five with causing a twelve-year-old child to engage in fellatio and anal intercourse on May 9 and May 20, 2007. The sixth count charged Mr. Caiba-Antele with causing an adult female to engage in sexual intercourse by the use of force, coercion or credible threats of violence on May 11, 2007. According to the nolle prosequi order, as described in the PSR, these charges were eventually dropped due to the psychological harm the victims would suffer if they testified at trial. Specifically, the PSR stated that the victim’s family members did not want the children to testify. Mr. Caiba-Antele admitted the procedural history of the charges as described in the PSR, but filed a written objection to their veracity. Contending he was innocent of the acts alleged, he asserted the court should not consider those prior charges in sentencing him because he had not been convicted and because, absent direct testimony from the alleged victims, the evidence that he had committed the charged crimes lacked sufficient indicia of reliability. The district court held an evidentiary hearing at which two detectives and a state prosecutor who had been involved in the 2007 case against Mr. Caiba-Antele testified. Both detectives testified at length about the interviews they had conducted with the children, and the transcripts of those interviews were entered into evidence. Each detective independently testified that he found the children’s accusations against Mr. Caiba-Antele credible because of the level of detail contained in the" }, { "docid": "12704269", "title": "", "text": "first referral and failure to reinves-tigate; and failure to report other abuse/neglect, such as failure to thrive, failure of Olivases to assist M.W., and Osborne’s supposition of possible sexual abuse. In the face of these myriad accusations, it is perhaps most helpful to look at what Defendant Sandberg did do during the course of her investigation. (See Defs.’ Ex. 38 at 4214-57.) On June 12th, the day she was assigned the first referral for bruising reported by M.W.’s preschool, Sandberg spoke with social workers Grin-dell, Atkins, and Gonzales to obtain background information; she had a telephone conversation with the referral source concerning the referral; she spoke by phone with Dr. Aoki at UNMH about possible diagnoses for the bruising; and she observed M.W. at the CYFD office and had a conversation with the Olivases about M.W. and the other foster children in their home. On June 13th, Sandberg sent a request to UNMH for all of M.W.’s medical records. She also spoke with Defendant Atkins about the Olivases and the Martinez children. Sandberg and her supervisor, Defendant Susan Elam, held a formal staffing on June 14th, at which Elam gave Sandberg instructions on further interviews, records, and contacts to be pursued. On June 15th Sandberg received Dr. Cito’s dental records concerning the extensive dental surgery he performed on M.W. on May 24th. On June 20th, Sandberg was assigned the investigation into Dr. Webster’s June 19th referral of emotional abuse. She spoke with Defendant Grindell about conversations with Raehelle Olivas the previous day and called Raehelle Olivas herself to discuss a home visit and the foster children’s health. After a staffing with Elam to discuss Dr. Webster’s referral and the home visit, Sandberg telephoned Dr. Webster to discuss the results of M.W.’s blood testing and Dr. Webster’s observations the previous day causing her to make the referral. Sandberg also spoke to Grin-dell about respite for the Olivases and the various diagnoses mentioned by Raehelle Olivas. Later, Sandberg visited the Olivas home. The Olivases, M.W., V.W., and the Martinez children were present for part or all of her visit. Sandberg observed MW.’s" }, { "docid": "2757266", "title": "", "text": "assault of a child. See Wis. Stat. § 948.02(l)(e). The jury heard testimony from Peterson’s victim, a ten-year-old boy we will call M.W. The boy testified that when he was seven years old he had slept over at Peterson’s house while his mother was away at a church retreat, and that on that occasion Peterson had abused him sexually. Although he regularly saw Peterson after that, M.W. kept the abuse a secret for more than a year. M.W. finally unburdened himself to two friends and his older sister one day while Peterson was at the boy’s house. The children brought the story to Trisha Liethen, an off-duty police officer who was also at the house volunteering as a mentor to M.W.’s sister through the Big Brothers Big Sisters program. In her trial testimony, Liethen described calling Peterson up from the basement and confronting him with the story, which she assumed had taken place recently. Instead of appearing surprised or denying the allegation, Peterson corrected her by saying, “that wasn’t when that happened.” At that point Liethen told him to stay put and called the police. The government also presented indirect evidence of Peterson’s guilt. M.W.’s two friends, his older sister, and his mother all gave their accounts of the day M.W. came forward, corroborating the details of the boy’s testimony. In addition, the court allowed the jury to hear “other acts” evidence concerning three underage girls whom Peterson had abused in the past under similar circumstances. See Wis. Stat. § 904.04(2). The jury was twice instructed to consider this evidence only for purposes of establishing motive, opportunity, intent, and absence of mistake. (No such instruction would be required today; Wisconsin has since amended § 904.04(2) to allow other acts evidence to show propensity in criminal prosecutions for sexual assault. 2005-2006 Wis. Legis. Serv. 310 (2005 A.B. 970) (West). Cf. Fed.R.Evid. 414.) Peterson did not testify in his own defense and did not call any witnesses. The jury returned a guilty verdict. Because of his multiple past offenses, Peterson was sentenced to life in prison without possibility of parole. Peterson recruited" }, { "docid": "2341361", "title": "", "text": "interviewed the victims of the alleged menacing; the narrative remarks of another police officer describing the events surrounding the defendant’s arrest from a police report, which was based on a phone conversation with one of the complaining witnesses; and an Alcohol, Tobacco and Firearms Report of Investigation, which also related the accusations of the victims. Id. at 1295-96. We held in Cook that this evidence exhibited the necessary indicia of reliability based on three factors. First, the officers “had the opportunity to observe [the victims’] demeanor and form an opinion regarding their veracity.” Id. at 1297. Second, the complaining witnesses each corroborated the sequence of events that had transpired. Id. And third, at a later date, one of the complaining witnesses retold the same version of events to another police officer over the phone. Id. Our decision in United States v. Fennell, 65 F.3d 812 (10th Cir.1995), is not to the contrary. In determining the proper sentence for Mr. Fennell, who had pled guilty to possession of an automatic machine gun, the district court found by a preponderance of the evidence that the defendant had fired his machine gun at his girlfriend, an act which qualified him for a four-level enhancement under the sentencing guidelines. Id. at 813. The only evidence the district court in Fennell considered regarding this alleged assault was the pre-sentence report and testimony from the probation officer who had prepared the report. Id. Both the report and the officer’s testimony merely recounted statements made to the officer by the defendant’s girlfriend during a phone interview. Id. We held that this evidence lacked sufficient indicia of reliability because, unlike here, it was uncorroborated and because the preparing officer “did not have an opportunity to observe [the complaining witness’] demeanor during the interview and therefore could not form any opinion as to her veracity.” Id. The evidence relied upon by the district court in the instant case manifests sufficient indicia of reliability based on the factors we discussed in Cook, and which were missing in Fennell. The detectives who testified regarding the sexual assault charges had observed the" }, { "docid": "10804924", "title": "", "text": "at the VOSR hearing turns in large part on weighing the reliability of her earlier statements regarding domestic abuse against her desire not to testify as expressed just prior to the hearing. The earlier statements bore significant indicia of reliability. Zavatsky had conducted six interviews with Marquita, as well as interviews with Booker and Nancy. Their stories corroborated each other. Zavatsky observed a scar on Marquita’s right hand consistent with the wound Marquita had described in her account of the events of February 26, 2010, in which appellant stabbed her right hand with a scissor blade. The district court found additional corroborating evidence in the NYPD Domestic Incident Report, Marquita’s Family Offense Petition, the temporary and permanent orders of protection, and the fact that Marquita sought protection from appellant at a shelter for victims of domestic violence. The hearsay portions of this evidence were detailed, credible, and sometimes under oath. They were not idle chit-chat. They were also corroborated by other evidence, including a court order that was admissible as an official record, see Fed. R.Evid. 803(8) (public records exception); the scar that was personally observed by Zavatsky; and Marquita’s report to the shelter that was not hearsay under Fed. R.Evid. 801(a) because it was not intended as an assertion. Also, Marquita’s expressed desire not to testify was not an unusual reaction by a victim of domestic abuse. And, while she sought at that time not to testify and to minimize the extent of that abuse, she actually confirmed the truth of her earlier statements in saying that she should have just “taken the ass whipping.” We have held that good cause justifying the absence of a declarant exists when a defendant has a “history of violent conduct [that] ma[kes] reprisal against [the declar-ant] a possibility.” Jones, 299 F.3d at 113. In United States v. Jackson, 347 Fed.Appx. 701, 703 (2d Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 1544, 176 L.Ed.2d 152 (2010), we found good cause not to call an assault victim to testify after she had “recanted her original accusations” because she had previously offered a “sworn" }, { "docid": "22179762", "title": "", "text": "right to confrontation. Here, the hearsay testimony was, indisputably, important to the finding of the violation. Comito was charged with using Connell’s credit cards and checks without her permission; he admitted to using the financial instruments, but testified that he had her authorization to do so. Thus, the contested element of the violation was whether Connell authorized Comito to use her cards and checks. The hearsay testimony consisted of the alleged victim’s purported statements regarding that critical question: Officer Perdue testified as to what Connell told him regarding her consent or lack of consent to the use by Comito of her cards and checks. Thus, Comito had a very strong interest in demonstrating that the hearsay testimony did not reflect “verified fact.” Comito’s interest in confronting Connell directly was further strengthened by the nature of the disputed hearsay evidence. Unsworn verbal allegations are, in general, the least reliable type of hearsay, and the particular utterances at issue here bore no particular indicia of reliability. Unlike in Martin, where the disputed hearsay involved urinalysis reports, which, as regular reports of a company whose business is to conduct such tests, are due a certain weight, 984 F.2d at 314, or in Walker, which involved the official records of a probation officer, 117 F,3d at 421, the hearsay here was' not inherently reliable. Connell’s statements were not made under oath, or in any other context that might lend them credence. Rather, shortly after their romantic relationship ended, Connell, the releasee’s ex-girlfriend, called Officer Perdue and accused her then-former lover of using her cards and checks. Compare United States v. Fennell, 65 F.3d 812, 813-14 (10th Cir.1995) (unsworn allegations made by defendant’s former girlfriend to probation officer during a telephone interview lack even minimal indicia of reliability); see also United States v. Huckins, 53 F.3d 276, 279 (9th Cir.1995) (hearsay evidence did not have minimal indicia of reliability required for admission at sentencing where it consisted of unsworn statements made by accomplice in the course of plea negotiations with the government). In addition, the hearsay testimony related to facts of which only Connell and" } ]

[ { "docid": "14751777", "title": "", "text": "MARKEY, Chief Judge. Disappointed bidders Grimberg and Schlosser jointly filed a post-award complaint in the Claims Court seeking termination and award to them of certain contracts awarded to another. They concurrently filed motions for a Temporary Restraining Order and a Preliminary Injunction. The Claims Court denied the motions and transferred the complaint to the District Court for the District of Columbia, 1 Cl.Ct. 253. We affirm. Background P.W. Parker Inc. (Parker), was the apparent winner on two contract bids opened on July 8, 1982, and September 13, 1982, respectively. On its bids, Parker identified its wholly-owned subsidiary, R & P Contractors (R & P), as subcontractor on all mechanical work. On July 12, 1982, Grimberg protested to the GSA contracting officer that the listing of R & P, over which Parker had complete control, violated paragraph 10 of the Special Conditions of the Invitation for Bid. By letter of July 29, 1982, the contracting officer acknowledged the protest, stating: “The bids are being evaluated by the contracting officer, and you will be advised of his decision.” On September 16, 1982, Schlosser made the same protest to the contracting officer respecting the bid opened on September 13, 1982. By letter of September 20, 1982, the contracting officer acknowledged the protest, stating: “The bids are being evaluated and you will be advised of our decision before an award is made.” On September 29 and 30, GSA awarded Parker the contracts. Grimberg and Schlosser jointly filed on October 4, 1982, the present complaint for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, and Declaratory Judgment, and concurrently filed Motions for a Temporary Restraining Order and Preliminary Injunction. On October 5, 1982, the government moved to dismiss for lack of jurisdiction. In an Order entered October 7, 1982, Judge Willi of the Claims Court denied Grimberg’s and Schlosser’s motions for lack of jurisdiction under 28 U.S.C. § 1491(a)(3) (Supp Y 1981), as amended by Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, § 133(a), 96 Stat. 25, 40 (1982) (Act), and transferred the case to the district court pursuant to § 301(a) of the" } ]

[ { "docid": "5398900", "title": "", "text": "process, that guarantees that responsive bids will be fully and fairly considered. United States v. Grimberg, 702 F.2d at 1367. The term is a development from the so-called “bid protest” actions in the United States Court of Claims to recover a money judgment for bid preparation expenses where Government procurement officials failed to afford prospective contractors fair consideration in accordance with the dictates of relevant statute and regulation. Keco Indus., Inc. v. United States, 192 Ct.Cl. 773, 428 F.2d 1233 (1970); Heyer Products Co. v. United States, 135 Ct.Cl. 63, 140 F.Supp. 409 (1956). The nature and content of the obligations inherent in this implied contract, as related to compliance with procurement regulations and recognition of constitutional and statutory criteria applicable to the solicitation, have resulted in differing treatment. One line of cases excludes from the obligations that are inherent in the implied contract (and denies equitable jurisdiction under section 1491(a)(3)) the following situations: compliance with procurement regulations that impact on all bidders, as distinguished from a direct impact on particular bidders (Quality Furniture Rentals, Inc. v. United States, 1 Cl.Ct. 136, 140 (1983) (KOZINSKI, C.J.)); a challenge that the terms of the particular solicitation are defective under the regulations (Ingersoll-Rand Co. v. United States, 2 Cl.Ct. at 376; Hero, Inc. v. United States, 3 Cl.Ct. 413 (1983) (WHITE, J.)); a contention that debarment procedures under DAR § 1-605 fails to meet constitutional due process standards (Cecile Indus., Inc. v. United States, 2 Cl.Ct. 690 (1983) (WIESE, J.)); and compliance with statutory and regulatory criteria of a determination of a bidder’s small business status. Gibralter Indus., Inc. v. United States, 2 Cl.Ct. 589 (1983) (MEROW, J.). Other eases, however, have found that the Government’s obligations in the implied contract have included compliance with a broader range of constitutional, statutory or regulatory standards. The implied contract has been found to include the following situations: compliance with procurement regulations that impact on all bidders with respect to the effect of failure to sign bid (De Mat Air, Inc. v. United States, 2 Cl.Ct. 197, 202 (1983) (GIBSON, J.)); a failure to comply" }, { "docid": "7372428", "title": "", "text": "the contracting officer is precluded from awarding the contract to the disappointed bidder. On that view, the action sought to be enjoined is that of the SBA, and in the light of the anti-injunction provision of the Small Business Act a necessary concomitant is that the Claims Court lacks jurisdiction to entertain the suit. According to Speco, where the SBA has finally determined that a bidder is not responsible and refuses to issue a COC: the contracting officer is thereby disabled from awarding it the contract. Ordering the contracting officer to withhold award from another bidder with the implicit expectation that ultimately it might be made to plaintiff would be equivalent to enjoining the effectiveness of the decision statutorily reserved to the SBA. This court has no power to enjoin the Administrator directly; it will not disingenuously enjoin him indirectly. 2 Cl.Ct. at 338 (citation omitted). For reasons fully developed by Judge Philip Miller in Related Industries and summarized infra, we reject Speco to the extent that it deems the SBA’s denial of a COC as final and unreviewable. In Related Industries, the DPSC solicited bids for a contract for sleeping bags. Even though the small-business plaintiff was the low bidder on the contract, the contracting officer notified it that he intended to reject its bid as non-responsible and that he planned to reject any and all future bids by plaintiff. After the SBA refused to issue a COC, plaintiff sought a declaratory judgment that it was the properly qualified low bidder on the contract. In addition, plaintiff sought an injunction restraining the United States, the DPSC and others from awarding the contract to any other bidder and requiring its award to plaintiff. 2 Cl.Ct. at 519. The Government filed (in Related Industries ) a motion to dismiss on two grounds. First, defendant there contended that because 15 U.S.C. § 637(b)(7)(A) (1982) entrusts the SBA with “final disposition” of the competency certification, the SBA’s determination is final and nonreviewable. Second, the defendant argued that under 15 U.S.C. § 634(b)(1), supra, neither the SBA nor its Administrator may be enjoined. Related" }, { "docid": "22937054", "title": "", "text": "small businesses. The DLA received three bids on Groups I, III, and IV and five bids on Group II. Bids were opened on November 1, 1977. Kinnett Dairies, Inc. (Kinnett), a small business concern, submitted the low bids on Groups I and III, while Flav-O-Rich, Inc. (Flav-O-Rich), a large business, submitted the low bids on Groups II and IV. Contracts were awarded to the low bidders on November 8, 1977. Ten days after the contracts were awarded, Kinnett initiated an action in federal district court challenging the basis of Solicitation 0048 with respect to Groups II and IV. Tilinnett contended that bidding on these groups should have been limited to small business concerns and claimed that the government had acted arbitrarily, capriciously, and without legal foundation in failing to restrict the solicitation. V^innett’s complaint named the United States and various government officials as defendants and, requesting a temporary restraining order and preliminary and permanent injunctive relief, sought (1) to prohibit defendants “from awarding to and contracting with the successful low bidder, Flav-O-Rich, for the supply or delivery of any or all dairy products as required by Groups II and IV” of Solicitation 0048, (2) to vacate the determination that bids on Groups II and IV be solicited on an unrestricted basis, and (3) to order the award of Groups II and IV to the low small business bidder (Kinnett) on Solicitation 0048. Kinnett further sought to enjoin defendants from considering certain factors in future procurement decisions under the Armed Services Procurement Regulations (ASPR), as well as declaratory and other relief. The district court denied Kinnett’s application for a temporary restraining order, noting that performance of the contract would not begin until December 1, but scheduled a hearing on the application for a preliminary injunction for November 28. A hearing was held on that date, at which time Flav-O-Rich was permitted to intervene in the action. At the conclusion of the hearing the court indicated its intention to enjoin the performance of the contract. The court entered its written Judgment the following day, restraining and enjoining the government defendants and intervenor" }, { "docid": "13822938", "title": "", "text": "FAGG, Circuit Judge. Foley Construction Company, the prevailing party in an action brought against the United States Army Corps of Engineers, seeks an award of attorneys’ fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The district court denied attorneys’ fees because it held that the government’s position was “substantially justified.” We affirm. I. BACKGROUND This litigation steins from the award of a construction contract in which Foley was an unsuccessful bidder. The Corps issued an invitation for bids on a flood protection levee to be built along the Mississippi River in Burlington, Iowa. The invitation was limited to small businesses pursuant to the Small Business Administration set-aside program, which promotes the award of federal contracts to small business concerns. Herbison Construction Company submitted the lowest bid. The second lowest bid wás submitted by Foley. Foley delivered in writing a timely protest to the Corps that Herbison did not qualify as a small business. The Corps suspended action on the contract and forwarded the protest to the SBA district office which ruled that Herbison was a small business. After the district office ruled, the Corps awarded the contract to Herbison. Foley then notified the Corps that it intended to appeal the decision of the SBA district office to the SBA Size Appeals Board and it brought an action in federal district court seeking to enjoin the Corps from proceeding under the contract with Herbison. The district court issued a temporary restraining order, and later a preliminary injunction, enjoining the Corps from proceeding under the construction contract until the Size Appeals Board had ruled on Foley’s appeal. The Size Appeals Board ruled that Herbison was not a small business, reversing the decision of its district office. The district court then permanently enjoined the Corps from proceeding with the contract with Herbison and ordered the Corps to award the contract to Foley. Thirty days after judgment had been entered, Foley filed an application for legal fees and expenses of $27,444.23 pursuant to the EAJA. The district court denied the application for attorneys’ fees because it" }, { "docid": "7372433", "title": "", "text": "Small Business Act: As an alternate ground for its motion to dismiss, the Government in Related Industries argued that while § 634 of the Small Business Act waived the SBA’s immunity from suit, it preserved the SBA’s immunity from injunctions. Again, Judge Miller’s exhaustive treatment of this issue allows us to rest on summarization. The Federal Courts Improvement Act of 1982 specifically empowers the Claims Court generally to grant injunctive relief on contract claims brought before the contract is awarded. 28 U.S.C. § 1491(a)(3) (1982). That recent expression of Congress’ purpose necessarily gives a new focus to the bare words of § 634(b)(1) with respect to such contract claims. In that connection, nothing either in the language or the legislative history of § 634 suggests that Congress intended to grant the SBA any greater immunity from injunctive relief than that possessed by other governmental agencies. At the time § 634 was originally adopted as part of the Small Business Act, injunctive relief was not available against the United States or Government entities acting in their governmental capacity; because the SBA was expressly made suable by the Small Business Act, Congress added the no-injunction provision to make sure that the “suable” clause did not permit specific relief against SBA, any more than the Tucker or Tort Claims Acts, though they allow suits for monetary relief, permit specific relief against the United States. Consequently, there is no basis for any inference that Congress intended to exclude the SBA when it later authorized injunctive relief against government agencies and departments generally on pre-award contract claims. Finally, as the Related Industries opinion noted: even if § 634(b)(1) were not superseded by § 1491(a)(3) and still barred injunction against the SBA, it is difficult to comprehend why it should also be deemed to bar injunctive relief against a branch of the Department of Defense. The DPSC’s refusal to consider plaintiff’s low bid was not merely as an arm or instrumentality of SBA, but based on its own statutory and regulatory authority. If DPSC were now to reconsider its rejection of plaintiff’s bid, SBA would have" }, { "docid": "19297609", "title": "", "text": "obtained from at least two responsible small business concerns ...; and (2) award will be made at fair market prices.” Count III of the plaintiff’s amended complaint alleges that DOE breached its implied-in-fact contract with the plaintiff to consider proposals fairly and honestly when it encouraged the plaintiff to participate in the solici tation process while at the same time making the determination to cancel the amended solicitation and have the work performed by a large business contractor. B. The Pending Motions The government moved to dismiss the complaint pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction, or, in the alternative, for judgment on the administrative record pursuant to RCFC 52.1. In its motion to dismiss, the government argues that the plaintiff has not identified any enforceable regulatory requirement that would prohibit the actions taken by DOE in cancel-ling the amended solicitation. In addition, the government argues that this court lacks jurisdiction to consider the plaintiffs implied-in-fact contract claim because, following the enactment of the Administrative Dispute Resolution Act (“ADRA”), Pub.L. No. 104-320, § 12(a), 110 Stat. 3874 (Oct. 19, 1996), this court’s jurisdiction to entertain bid protest claims lies solely under 28 U.S.C. § 1491(b), not the provision for implied contract claim jurisdiction in 28 U.S.C. § 1491(a)(1). The government further contends that, because 28 U.S.C. § 1491(b)(1) only allows for objections to (1) “a solicitation by a Federal agency for bids or proposals for a proposed contract,” (2) “a proposed award,” (3) “the award of a contract,” or (4) “any alleged violation of statute or regulation in connection with a procurement or a proposed procurement,” see 28 U.S.C. § 1491(b)(1), and the plaintiffs objection to the cancellation of the solicitation does not fall into any of those categories, the court may not consider the plaintiffs claim. In fact, the government argues that “cancellation of a negotiated procurement is an act committed to agency discretion for which there are no legal standards to apply.” Def.’s Reply at 16 (emphasis added). Therefore, the government argues, this court lacks jurisdiction to review DOE’s cancellation of the solicitation. In the" }, { "docid": "7372432", "title": "", "text": "officer. So construed, § 637 is simply a protective statute designed to.insulate the small business concern from the contracting officer’s refusal to follow the SBA decision. However, contrary to Speco and the position taken by the Government on this appeal, the converse is not true. The SBA’s refusal to issue a COC does not prevent the contracting officer from later reversing himself, on the basis of new evidence. Moreover, “[t]he text or legislative history of a statute must provide ‘clear and convincing’ evidence of congressional intent ... before a statute will be construed to restrict access to judicial review.” Related Industries, 2 Cl.Ct. at 520 (quoting Johnson v. Robison, 415 U.S. 361, 373-74, 94 S.Ct. 1160, 1169, 39 L.Ed.2d 389 (1974)). We agree that neither the language (“final disposition”) nor the legislative history of § 637 undermines the “normal presumption in favor of judicial review.” See Whitecliff, Inc. v. United States, 210 Ct.Cl. 53, 58, 536 F.2d 347, 350 (1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977). Anti-injunction provision of Small Business Act: As an alternate ground for its motion to dismiss, the Government in Related Industries argued that while § 634 of the Small Business Act waived the SBA’s immunity from suit, it preserved the SBA’s immunity from injunctions. Again, Judge Miller’s exhaustive treatment of this issue allows us to rest on summarization. The Federal Courts Improvement Act of 1982 specifically empowers the Claims Court generally to grant injunctive relief on contract claims brought before the contract is awarded. 28 U.S.C. § 1491(a)(3) (1982). That recent expression of Congress’ purpose necessarily gives a new focus to the bare words of § 634(b)(1) with respect to such contract claims. In that connection, nothing either in the language or the legislative history of § 634 suggests that Congress intended to grant the SBA any greater immunity from injunctive relief than that possessed by other governmental agencies. At the time § 634 was originally adopted as part of the Small Business Act, injunctive relief was not available against the United States or Government entities acting in their" }, { "docid": "22937053", "title": "", "text": "regulations with neither a detailed roadmap nor a reliable compass. We begin with a review of the rather complex litigative history of the case now before us. I. The present suit arises from the solicitation and subsequent award of contracts for milk and ice cream to be supplied to Fort Benning, Georgia, for a period of six months commencing December 1, 1977. The solicitation, No: DLA 13H-78-B-0048 (hereinafter Solicitation 0048), was issued on October 6, 1977, and invited bids on four designated groups of milk and ice cream products. This lawsuit chiefly concerns only two of the four groups, Group II (milk for resale by the post exchange and commissaries) and Group IV (ice cream for resale by the post exchange and commissaries). Groups II, III, and IV were solicited on an unrestricted basis, meaning that any • business, regardless of its size, could com-I pete for the contracts. Group I was set-aside, or restricted, for exclusive participa f-tion by small business concerns. During the bid process, eight firms were solicited, of which five were small businesses. The DLA received three bids on Groups I, III, and IV and five bids on Group II. Bids were opened on November 1, 1977. Kinnett Dairies, Inc. (Kinnett), a small business concern, submitted the low bids on Groups I and III, while Flav-O-Rich, Inc. (Flav-O-Rich), a large business, submitted the low bids on Groups II and IV. Contracts were awarded to the low bidders on November 8, 1977. Ten days after the contracts were awarded, Kinnett initiated an action in federal district court challenging the basis of Solicitation 0048 with respect to Groups II and IV. Tilinnett contended that bidding on these groups should have been limited to small business concerns and claimed that the government had acted arbitrarily, capriciously, and without legal foundation in failing to restrict the solicitation. V^innett’s complaint named the United States and various government officials as defendants and, requesting a temporary restraining order and preliminary and permanent injunctive relief, sought (1) to prohibit defendants “from awarding to and contracting with the successful low bidder, Flav-O-Rich, for the supply" }, { "docid": "19300792", "title": "", "text": "General Trades & Services On May 27, 2010, the Air Force informed the GAO in a letter that it would not comply with the GAO’s decision sustaining DGR’s protest. AR 945-46. The Air Force contended that memoranda from the Office of Management and Budget and the Department of Justice constituted “binding” and “mandatory” guidance on the prioritization of HUBZone small business concerns. Id. These memoranda directed executive agencies, including the Air Force, to follow 13 C.F.R. §§ 126.605 and 126.607, and to place qualified HUBZone small business concerns and section 8(a) program participants on an equal footing for the award of contracts. AR 945-65. The Air Force notified DGR on June 14, 2010 that it would terminate DGR’s work order effective July 15, 2010. AR 982. On June 15, 2010, DGR requested the Air Force to identify the new contractor who would provide the services, and the Air Force’s method of procuring the contract. See Pl.’s July 9, 2010 Mot. 8; see also Pl.’s TRO Mem. 155-56. The Air Force responded on June 16, 2010, stating that: (1) it “intends to award a contract and not a BP A;” (2) “the name of the potential awardee cannot be released at this time;” and (3) “no explanation [is] needed, for we will award a new contract, not a BPA.” (Pl.’s TRO Mem. 155.) The Air Force announced a “competitive 8(a) set-aside” award to General Trades & Services on June 17, 2010. AR 994. On June 28, 2010, DGR filed its suit in this Court. Bid Protest Jurisdiction and Applicable Standards of Review The Court of Federal Claims has jurisdiction to review pre-award and post-award bid protests pursuant to the Tucker Act, 28 U.S.C. § 1491(b)(1)(2006), as amended by the Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, § 12(a)-(b)(1996). The Court reviews bid protests under the standards set forth in the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See 28 U.S.C. § 1491(b)(4); NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed.Cir.2004). The APA provides that an agency’s decision is to be set aside only if it" }, { "docid": "7372427", "title": "", "text": "the Claims Court seeking injunctive relief and asserting that the rejection of its bid was part of a de facto debarment and therefore illegal. The Government moved for summary judgment. Following oral argument the Claims Court denied injunctive relief and entered an order dismissing the case for lack of jurisdiction. In his oral opinion, Judge Mayer ruled that Speco Corp. v. United States, 2 Cl.Ct. 335 (1983) (Mayer, J.), controlled and held that the Claims Court “is not authorized to enjoin the SBA responsibility determination either directly or indirectly by acting on the decision of the contracting officer who is divested of further discretion when the SBA determines whether or not to issue a Certificate of Competency.” On appeal, counsel for Cavalier argues that Speco was wrongly decided and that a contrary Claims Court decision, Related Industries, Inc. v. United States, 2 Cl.Ct. 517 (1983), should govern. II. DISCUSSION As we have said, in dismissing Cavalier’s complaint, Judge Mayer relied on his earlier holding in Speco that, once the SBA declines to issue a COC, the contracting officer is precluded from awarding the contract to the disappointed bidder. On that view, the action sought to be enjoined is that of the SBA, and in the light of the anti-injunction provision of the Small Business Act a necessary concomitant is that the Claims Court lacks jurisdiction to entertain the suit. According to Speco, where the SBA has finally determined that a bidder is not responsible and refuses to issue a COC: the contracting officer is thereby disabled from awarding it the contract. Ordering the contracting officer to withhold award from another bidder with the implicit expectation that ultimately it might be made to plaintiff would be equivalent to enjoining the effectiveness of the decision statutorily reserved to the SBA. This court has no power to enjoin the Administrator directly; it will not disingenuously enjoin him indirectly. 2 Cl.Ct. at 338 (citation omitted). For reasons fully developed by Judge Philip Miller in Related Industries and summarized infra, we reject Speco to the extent that it deems the SBA’s denial of a COC" }, { "docid": "5391570", "title": "", "text": "COWEN, Senior Circuit Judge. The appellant, F. Alderete General Contractors, Inc. (Alderete or contractor), appeals from a decision of the United States Claims Court (Claims Court) which held that it lacked the power under 28 U.S.C. § 1491(a)(3) to grant injunctive and other equitable relief under the circumstances. The contractor first filed his suit for equitable relief in a district court, which transferred the case to the Claims Court. The contract was awarded after the transfer but before the Claims Court could rule on the merits of the application. Holding that it could not exercise the equitable powers granted by the statute beyond the pre-award stage of the procurement process, the Claims Court dismissed the contractor’s complaint. We reverse and remand for further proceedings. Background On January 21, 1983, Alderete filed a “Motion for Contempt, Application for Enforcement of Judgment, and for Further Relief” in the United States District Court for the Western District of Texas (District Court) on December 15, 1981. Prior to the filing of the motion, that court had issued a permanent injunction which required that the U.S. Army Corps of Engineers (Corps) offer the Keystone Project in El Paso, Texas, to the Small Business Administration (SBA) under the program established pursuant to Section 8(a) of the Small Business Act, 15 U.S.C. § 637. Following the issuance of the injunction, the Corps offered the Keystone Project to the SBA, and in June 1982, Alderete was selected for this procurement. The ensuing negotiations between Alderete and the Corps were not successfully concluded and the Corps, after advising SBA, then removed the project from the Section 8(a) program. On January 14, 1983, an unrestricted invitation for bids was issued. Al-derete responded with the motion it filed on January 21, 1983, referred to above. On February 19, 1983, the District Court entered an order holding the Corps in civil contempt for its decision to let the Keystone Project procurement on an unrestricted basis. However, the court also granted the Corps permission to seek relief from the injunction previously entered and to pro ceed with the bid opening then scheduled, provided" }, { "docid": "22824356", "title": "", "text": "court of limited jurisdiction. Under the Tucker Act, the court has jurisdiction “to render judgment upon any claim against the United States founded ... upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). We have stated that “[t]his jurisdictional grant extends to suits brought by disappointed bidders, commonly called bid protests, challenging the proposed award of contracts based on alleged improprieties in the procurement process.” Central Ark. Maintenance, Inc. v. United States, 68 F.3d 1338, 1341 (Fed.Cir.1995). The jurisdictional basis for such suits is the alleged breach of “an implied contract to have the involved bids fairly and honestly considered.” United States v. John C. Grimberg Co., 702 F.2d 1362, 1367 (Fed.Cir.1983) (in banc). The government is said to breach the implied contract “if its consideration of offers is found to be ‘arbitrary and capricious toward the bidder-claimant.’ ” Central Ark., 68 F.3d at 1341 (quoting Keco Indus., Inc. v. United States, 203 Ct.Cl. 566, 492 F.2d 1200, 1203 (1974)). If a breach of the implied contract to consider bids fairly and honestly is found, the Court of Federal Claims has the power to award equitable relief. The Tucker Act, as amended by the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, § 133(a), 96 Stat. 25, 40, provides in pertinent part as follows: “To afford complete relief on any contract claim brought before the contract is awarded, the court shall have exclusive jurisdiction to grant declaratory judgments and such equitable and extraordinary relief as it deems proper, including but not limited to injunctive relief.” 28 U.S.C. § 1491(a)(3) (1994). The ultimate standard for determining whether an unsuccessful bidder is entitled to relief on the ground that the government breached the implied-in-fact contract to consider all bids fairly and honestly is whether the government’s conduct was arbitrary and capricious. See Keco Indus., Inc. v. United States, 203 Ct.Cl. 566, 492 F.2d 1200, 1203 (1974). In Keco, the Court of Claims set out four factors that are generally relevant to the determination of whether the government has breached its duty. Those factors are: (1) subjective" }, { "docid": "19297608", "title": "", "text": "pursuant to the court’s bid protest jurisdiction over “any alleged violation of statute or regulation in connection with a procurement or a proposed procurement” under 28 U.S.C. § 1491(b)(1) (2000). Specifically, Count I alleges that the government violated FAR 1.102(b)(3), 48 C.F.R. § 1.102(b)(3) (2004), and FAR 1.102-2(c), 48 C.F.R. § 1.102-2(c) (2004), which require the government to “[e]onduct business with integrity, fairness, and openness,” when DOE encouraged the plaintiff to expend resources responding to the solicitation and the amended solicitation instead of “disclos[ing] to Plaintiff [DOE’s] real intent of cancelling the Amended Solicitation while continuing to have the work performed by a large business contractor.” Am. Compl. ¶¶ 1, 34-41. Count II alleges that, when the government cancelled the amended solicitation and allowed the large business incumbent contractor to perform the work specified therein, the government violated FAR 19.502-2(b), 48 C.F.R. § 19.502-2(b) (2004), which provides, inter alia, that “[t]he contracting officer shall set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns ...; and (2) award will be made at fair market prices.” Count III of the plaintiff’s amended complaint alleges that DOE breached its implied-in-fact contract with the plaintiff to consider proposals fairly and honestly when it encouraged the plaintiff to participate in the solici tation process while at the same time making the determination to cancel the amended solicitation and have the work performed by a large business contractor. B. The Pending Motions The government moved to dismiss the complaint pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction, or, in the alternative, for judgment on the administrative record pursuant to RCFC 52.1. In its motion to dismiss, the government argues that the plaintiff has not identified any enforceable regulatory requirement that would prohibit the actions taken by DOE in cancel-ling the amended solicitation. In addition, the government argues that this court lacks jurisdiction to consider the plaintiffs implied-in-fact contract claim because, following the enactment of the Administrative Dispute Resolution Act (“ADRA”), Pub.L. No. 104-320," }, { "docid": "763577", "title": "", "text": "making an award of the set-aside contract as requested in the protest. This suit was then filed in the district court. In its complaint, Cincinnati sought review both of the decision of SBA that Cincinnati was not qualified for preferential treatment as a small business concern and of the action of the Secretary of the Army, acting through the contracting officer, in refusing to forward its protest of Sentinel’s small-business-concern status to SBA and in awarding the set-aside contract to Sentinel without awaiting the outcome of Cincinnati’s protest. The district court did not reach the issue of Cincinnati’s qualification as a small business concern because of the manner in which the case proceeded. The court entered a temporary restraining order against the defendant Calla-way and set a hearing on Cincinnati’s motion for a preliminary injunction. No injunctive relief was sought against the administrator of SBA, and thus the issue with respect to determination of Cincinnati’s status as a small business concern was not involved in the injunction proceedings. The district court denied the motion for a preliminary injunction and filed an opinion setting forth his findings and conclusions. An appeal was taken from the order denying the injunction pursuant to 28 U.S.C. § 1292(a)(1). Thereafter the court entered a final judgment of dismissal of the defendant Callaway “on the claims that the Contracting Officer violated the Armed Services Procurement Regulations in awarding the set-aside portion of the procurement contract to Sentinel Electronics, Inc.” In this order, the court made the required determination under Rule 54(b), Fed.R.Civ.P., that there is no just reason for delay and the alternative certification under 28 U.S.C. § 1292(b) that the order involves controlling questions of law as to which there is substantial ground for difference of opinion and an immediate appeal might materially advance the ultimate termination of the litigation. Cincinnati filed a separate appeal from this judgment, and the two appeals were consolidated for hearing and decision. The claims in the complaint against the administrator of SBA are pending in the district court. THE ISSUE OF STANDING At the outset, the court is faced" }, { "docid": "7372429", "title": "", "text": "as final and unreviewable. In Related Industries, the DPSC solicited bids for a contract for sleeping bags. Even though the small-business plaintiff was the low bidder on the contract, the contracting officer notified it that he intended to reject its bid as non-responsible and that he planned to reject any and all future bids by plaintiff. After the SBA refused to issue a COC, plaintiff sought a declaratory judgment that it was the properly qualified low bidder on the contract. In addition, plaintiff sought an injunction restraining the United States, the DPSC and others from awarding the contract to any other bidder and requiring its award to plaintiff. 2 Cl.Ct. at 519. The Government filed (in Related Industries ) a motion to dismiss on two grounds. First, defendant there contended that because 15 U.S.C. § 637(b)(7)(A) (1982) entrusts the SBA with “final disposition” of the competency certification, the SBA’s determination is final and nonreviewable. Second, the defendant argued that under 15 U.S.C. § 634(b)(1), supra, neither the SBA nor its Administrator may be enjoined. Related Industries expressly refused to follow Speco and rejected both grounds urged as supporting the motion to dismiss. We follow that opinion’s analysis. Finality of SBA competency determination: Section 637 of the Small Business Act as amended provides in pertinent part: Additional Powers (b) It shall also be the duty of the [Small Business] Administration and it is empowered, whenever it determines such action is necessary— ****** (7)(A) To certify to Government procurement officers ... with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perserverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. A Government procurement officer ... may not, for any reason specified in the preceding sentence, preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration. ****** (C) In any case in which a small business concern or group of such concerns has been certified by the Administration" }, { "docid": "22937055", "title": "", "text": "or delivery of any or all dairy products as required by Groups II and IV” of Solicitation 0048, (2) to vacate the determination that bids on Groups II and IV be solicited on an unrestricted basis, and (3) to order the award of Groups II and IV to the low small business bidder (Kinnett) on Solicitation 0048. Kinnett further sought to enjoin defendants from considering certain factors in future procurement decisions under the Armed Services Procurement Regulations (ASPR), as well as declaratory and other relief. The district court denied Kinnett’s application for a temporary restraining order, noting that performance of the contract would not begin until December 1, but scheduled a hearing on the application for a preliminary injunction for November 28. A hearing was held on that date, at which time Flav-O-Rich was permitted to intervene in the action. At the conclusion of the hearing the court indicated its intention to enjoin the performance of the contract. The court entered its written Judgment the following day, restraining and enjoining the government defendants and intervenor Flav-O-Rich from performing the contracts identified as Groups II and IV of Solicitation 0048 or paying the contract price of said contracts, “pending the final hearing and determination of this ease . . ..” The district court filed accompanying findings of fact and conclusions of law, also on November 29, 1977. Both the government and Flav-O-Rich filed notices of appeal. The district court denied motions to stay the issuance of its preliminary injunction. (1) Price spread between the bids of participating small business concerns; (2) Price spread between the bids of large business concerns and small business concerns; and (3) Geographic proximity of a small business concern to the military installation to be supplied under the terms and conditions of a solicitation. On December 5, 1977, this court, per Judge Rubin, granted a stay of the injunction issued by the district court during the pend-ency of this appeal. The stay was expressly conditioned on Flav-O-Rich’s execution of a bond designed to make Kinnett whole should Kinnett prevail on appeal. A bond for $100,000 was subsequently" }, { "docid": "19297636", "title": "", "text": "whether the plaintiffs claim alleges violations of FAR 1.102(b)(3) and FAR 1.102-2(c) or breaches of the implied contract to consider bids fairly and honestly, “such conduct is actionable in a bid protest.” See L-3 Commc’ns, 79 Fed.Cl. at 462. Thus, although jurisdiction in this case is based on the “violation of a statute or regulation” prong of 28 U.S.C. § 1491(b)(1), specifically on violations of FAR 1.102(b)(3) and 1.102-2(c), the ADRA does not limit the theories on which the plaintiff may base its objection to the alleged lack of integrity, fairness, and openness thereunder, and therefore the plaintiff is not precluded from bringing its implied-in-fact contract claim. See L-3 Commc’ns, 79 Fed.Cl. at 462. C. This Court Has Jurisdiction to Consider the Violations of FAR 19.502-2(b) Alleged by the Plaintiff. The court also rejects the government’s argument that this court lacks jurisdiction to consider the plaintiffs claim under FAR 19.502-2(b). As noted above, FAR 19.502-2(b) provides that the CO “shall set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns ...; and (2) award will be made at fair market prices.” Here, the plaintiff alleges that DOE violated FAR 19.502-2(b) when it cancelled the small business set-aside solicitation and allowed the incumbent large business contractor to perform the work that had been included therein. The government argues that this court lacks jurisdiction to consider the alleged violation of FAR 19.502-2(b) because the provision “does not mandate termination of contracts already being performed[, in this case, the large business incumbent’s contract,] to resolicit the same work from small businesses,” and because the provision “addresses only the decision to set aside acquisitions,” not the decision to cancel, which the government argues is the only agency decision at issue in this case. Def.’s Mot. at 15. However, the government’s argument regarding FAR 19.502-2(b) conflates the merits of whether the provision was violated in this case with the jurisdictional question of whether the court may consider whether it was violated. Determining whether the provision" }, { "docid": "19300835", "title": "", "text": "the Court’s inquiry into Congress’ intent must begin and end with the language of the HUBZone program, what it does say and what it does not say. See Conn. Nat’l Bank, 503 U.S. at 254, 112 S.Ct. 1146. Despite Defendant’s contentions, this Court does not find that the legislative history of the statute warrants departure from the plain words of the Small Business Act. C. The Air Force Violates The Small Business Act by Complying With The SBA’s Statutory Interpretation. If the Air Force had followed the HUBZone provision as it was obligated to do by the plain statutory language, it would have found there was a reasonable expectation that at least two qualified HUBZone small business concerns could submit offers at fair market prices. Under an earlier solicitation for the same services, Solicitation I, four offerors submitted proposals under a HUBZone small business set-aside, including DGR. After awarding Solicitation I under the HUBZone program, the Air Force cancelled it following DGR’s protest of the contract award to an ineligible entity. Therefore, if the Air Force had complied with the Small Business Act as interpreted herein, the current contract would have been set aside for a HUBZone small business concern, which would have given DGR an opportunity to compete. D. Permanent Injunctive Relief is Granted. On June 28, 2010, when DGR filed its lawsuit, DGR requested declaratory and injunctive relief to prohibit the Air Force from proceeding with the performance of the contract awarded to General Trades & Services for military family housing maintenance services. The Court has substantial discretion to decide whether to grant injunctive relief in a bid protest. See 28 U.S.C. § 1491(b)(2) (“To afford relief in such an action, the courts may award any relief that the court considers proper, including declaratory and injunctive relief except that any monetary relief shall be limited to bid preparation and proposal costs.”); see also PGBA v. United States, 389 F.3d 1219, 1223-24 (Fed.Cir.2004) (“We give deference to the Court of Federal Claims’ decision to grant or deny injunctive relief _”) (citation omitted). In determining whether to grant in-junctive relief," }, { "docid": "5398901", "title": "", "text": "Inc. v. United States, 1 Cl.Ct. 136, 140 (1983) (KOZINSKI, C.J.)); a challenge that the terms of the particular solicitation are defective under the regulations (Ingersoll-Rand Co. v. United States, 2 Cl.Ct. at 376; Hero, Inc. v. United States, 3 Cl.Ct. 413 (1983) (WHITE, J.)); a contention that debarment procedures under DAR § 1-605 fails to meet constitutional due process standards (Cecile Indus., Inc. v. United States, 2 Cl.Ct. 690 (1983) (WIESE, J.)); and compliance with statutory and regulatory criteria of a determination of a bidder’s small business status. Gibralter Indus., Inc. v. United States, 2 Cl.Ct. 589 (1983) (MEROW, J.). Other eases, however, have found that the Government’s obligations in the implied contract have included compliance with a broader range of constitutional, statutory or regulatory standards. The implied contract has been found to include the following situations: compliance with procurement regulations that impact on all bidders with respect to the effect of failure to sign bid (De Mat Air, Inc. v. United States, 2 Cl.Ct. 197, 202 (1983) (GIBSON, J.)); a failure to comply with due process standards and procurement regulations relative to debarment and suspension by referral to the Small Business Administration of the contracting officer’s determination of nonresponsibility (Related Indus., Inc. v. United States, 2 Cl.Ct. 517 (1983) (MILLER, J.)); unreasonable delay in award of contracts pending referral of responsibility determination to SBA amounted to de facto debarment or suspension and a failure to comply with applicable constitutional and regulatory standards (ATL, Inc. v. United States, 3 Cl.Ct. 52 (1983 (MILLER, J.)); and an implied-in-fact contract to a nonbidder of the right to bid in the solicitation at issue, which was related to the preexisting implied-in-fact contract (American Hoist & Derrick, Inc. v. United States, 3 Cl.Ct. 198 (1983 (COLAIANNI, J.)); accord, as to availability of equitable relief on a claim of a preexisting implied contract related to the prospective award of an express one. Yachts America, Inc. v. United States, 3 Cl.Ct. 447 (1983 (MAYER, J.)). It may be that the particular holdings in these cases are appropriate to the facts involved in each, and that" }, { "docid": "5398902", "title": "", "text": "with due process standards and procurement regulations relative to debarment and suspension by referral to the Small Business Administration of the contracting officer’s determination of nonresponsibility (Related Indus., Inc. v. United States, 2 Cl.Ct. 517 (1983) (MILLER, J.)); unreasonable delay in award of contracts pending referral of responsibility determination to SBA amounted to de facto debarment or suspension and a failure to comply with applicable constitutional and regulatory standards (ATL, Inc. v. United States, 3 Cl.Ct. 52 (1983 (MILLER, J.)); and an implied-in-fact contract to a nonbidder of the right to bid in the solicitation at issue, which was related to the preexisting implied-in-fact contract (American Hoist & Derrick, Inc. v. United States, 3 Cl.Ct. 198 (1983 (COLAIANNI, J.)); accord, as to availability of equitable relief on a claim of a preexisting implied contract related to the prospective award of an express one. Yachts America, Inc. v. United States, 3 Cl.Ct. 447 (1983 (MAYER, J.)). It may be that the particular holdings in these cases are appropriate to the facts involved in each, and that the distinctions explained in the opinions are differences without substance. To the extent that they are substantial on the facts of the particular case, however, such matters will have to await illumination and resolution at the United States Court of Appeals for the Federal Circuit. The “contract claim” that is eligible for injunctive relief under section 1491(a)(3) includes, at least, the type of contractual relationships that were considered for monetary awards through the jurisdictional statute of the former Court of Claims, now embodied in section 1491(a)(1). The implied contract delineated in preexisting case law in the bid protest cases included the obligation that the Government’s consideration would accord with requirements of the Constitution, statutes, and regulations applicable to contracts with the Government. The seminal Court of Claims cases involved consideration and application of procurement regulations of general application relevant to the particular claims. Keco Indus., Inc. v. United States, 192 Ct.Cl. 773, 428 F.2d 1233; Heyer Products Co. v. United States, 135 Ct.Cl. 63, 140 F.Supp. 409. The Court of Claims cases accorded with the" } ]

[ { "docid": "2995898", "title": "", "text": "“competition” in the Lanham Act in the Pickwickian way it is suggested that the term has already been read in relation to trademarks.. See McCarthy, Trademarks and Unfair Competition, 1984 ed. § 24.4B. The statute does not permit us to accept Halicki’s invitation. The final section of the Lanham Act — in a passage unusual, and extraordinarily helpful, in declaring in so many words the intent of Congress— states that “the intent of this chapter is to regulate commerce within the control of Congress ... to protect persons engaged in such commerce against unfair competition.” We quote the operative language. The rest of the declaration of intent relates to the use of trademarks and is not relevant here. The statute is directed against unfair competition. To be actionable, conduct must not only be unfair but must in some discernible way be competitive. In oral argument, Halicki suggested that United Artists Communications in fact had films competitive with his which would have benefited by decreasing the box office attraction of his. The films were not identified. They were not a part of his case and reference to them came too late to save it. Halicki failed to show injury by a competitor. If Section 43(a) is not confined to injury to a competitor in the case of a false designation, it becomes a federal statute creating the tort of misrepresentation, actionable as to any goods or services in commerce affected by the misrepresentation. As one treatise suggests, the Lanham Act then would be similar to French, German and Swiss law where, by virtue of a general code clause, in any suit in tort or contract the violation of good morals may become an issue. Broadening the Act from unfair competition to unfair trade “is equivalent” to the complete dilution of the concept of unfair competition. Callmann, Unfair Competition, Trademarks and Monopolies, (1981 ed., 1986 supp.) § 209. Adhering to the statutory language, we do not find conduct actionable under Section 43(a). Cf. U-Haul International v. Jartran, Inc., 681 F.2d 1159 (9th Cir.1982) (injury by a competitor) See Alfred Dun- hill Limited" } ]

[ { "docid": "19208560", "title": "", "text": "has not alleged the necessary competitive harm to have standing to bring a Lanham Act claim. Contrary to Plaintiffs’ argument, the Lanham Act does not require that the parties be competitors. In Thom, the Third Circuit specifically held that the fact that a claimant is not a competitor to the adverse party does not preclude prudential standing to bring a Lanham Act claim. 736 F.2d at 933. In that case, the plaintiff, the president, CEO, director, and forty-five-percent shareholder in a trucking company, brought a Lanham Act claim against a competing company and its officers and directors for false advertising that allegedly drove plaintiffs company into bankruptcy. Id. at 930-31. Although the Third Circuit found that the plaintiff as an individual investor in the harmed company was not a direct competitor of the competing company, it held that the plaintiff had a sufficiently direct injury to fall within the class of persons to be protected by the Lanham Act. Id. at 933. However the Third Circuit in Serbin v. Ziebart Int’l Corp., Inc., 11 F.3d 1163, 1179 (3d Cir.1993) failed to extend Lanham Act standing to consumers. Subsequently in Conte Brothers, the Third Circuit reiterated that a non-competitor may have prudential standing under the Lanham Act in certain circumstances. 165 F.3d at 234. However, in that case, the Court found that the plaintiffs, a nationwide class of retailers who sold a product that competed with the defendant manufacturer’s product, did not have prudential standing to assert a Lanham Act claim. The Court emphasized that “the focus of the Lanham Act is on commercial interests that have been harmed by a competitor’s false advertising and in securing] to the business community the advantages of reputation and goodwill by preventing their diversion from those who have created them to those who have not.” Id. (internal quotations and emphasis omitted). Based on this, the Court found that the plaintiffs, as retailers, had alleged a commercial interest but had not alleged an impact on their ability to compete with the defendant, a manufacturer, necessary to allege the required competitive harm. Id. Nor had the" }, { "docid": "9371184", "title": "", "text": "economic significance and the proscribed adverse “effect.” * # # # * * As used in this statute and depending upon the factual context, “assets” may mean anything of value. 189 F.Supp. at 181-82. Even under these broad definitions, the allocation of additional shelf space to Frito-Lay for the duration of the TOP program cannot constitute the acquisition of an asset in violation of Section 7. Section 43(a) of the Lanham Act — Third Counterclaim For its third counterclaim, defendant alleges that plaintiff misrepresented its share of the market to “retailers” in order to secure additional shelf space, in violation of Section 43(a) of the Lanham Act. Section 43(a) provides, in pertinent part: Any person who shall ... use in connection with any goods or services ... a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce ... shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin ... or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation. 15 U.S.C. § 1125(a). In its effort to stretch the Lanham Act, defendant relies on two decisions from outside this circuit. In Walker-Davis Publications, Inc. v. Penton/IPC, Inc., 509 F.Supp. 430 (E.D.Pa.1981), the publisher of a controlled circulation magazine sued a competitor claiming that the competitor’s misrepresentation of its circulation and the nature of its audience had misled advertising buyers, and thereby caused the plaintiff to lose revenues from the sale of advertising. The court found that Section 43(a) was applicable, but that proof that advertising buyers had actually been misled was an essential element of the claim. In In re Uranium Antitrust Litigation, 473 F.Supp. 393 (N.D.Ill.1979), the court refused to dismiss a counterclaim that plaintiff’s misrepresentation to its customers of the quantity of uranium it could supply violated the Lanham Act. The court refused to apply the “inherent" }, { "docid": "14253143", "title": "", "text": "the same consumer group, and whether the conduct of the defendant, if true, could be said to create “competitive injury.” In Waits, the Ninth Circuit described the scope of the phrase “competitive injury” in explaining its earlier ruling in Halicki. Waits, 978 F.2d at 1108-09. Halicki involved a complaint by a producer alleging that United Artists, the film distributor with whom he had contracted, falsely represented that it would market his,film with a “PG” rating but ultimately released it with an “R” rating. Halicki, 812 F.2d at 1214. Because Halicki was not competing with United Artists, the Ninth Circuit held that he lacked standing to pursue a claim under the Lanham Act. 812 F.2d 1213-14. The panel in Waits contrasted the Halicki facts with a similar, but distinguishable, hypothetical: We take an example close to Halicki’s facts, assuming for purposes of this hypothetical only that projducers may rate their own films. If a film’s distributor wrongfully indicates that a film is “PG”-rated when in reality it should be “R”-rated, a competitor with a PG-rated film would have standing: the mis-rated film theoretically draws young audiences away from the competitor’s film because of the misrepresentation concerning the suitability of its content. 978 F.2d at 1109; see also Barrus v. Sylvania, 55 F.3d 468, 470 (9th Cir.1995) (standing in false advertising cases based on conduct “harmful to the plaintiffs ability to compete with the defendant”). Thus, under Waits, if one participant in the marketplace makes false statements that could theoretically draw consumers away from similar offerings of other participants in the same marketplace, and those false statements implicate the purposes of the Lanham Act (such as protection of trademarks or prevention of unfair competition), then those other participants have standing to bring suit under the Lanham Act for unfair competition in the form of false advertising. a. Kournikova and GMC are Competitors Plaintiff maintains that she and GMC are competitors. (Opp. at 6). GMC contends otherwise. Although the two parties are nominally engaged in what might seem to be distinctly different businesses (athletics and publishing), that distinction is both artificial and simplistic." }, { "docid": "20369046", "title": "", "text": "(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale ... of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; shall be liable in a civil action .... 15 U.S.C. § 1114(a)(1). Section 43(a) of the Lanham Act, and unfair competition law in general, prohibits a person from using “any word, term, name, symbol, or device, or any combination thereof ... which is likely to cause confusion ... as to the origin, sponsorship or approval of his or her goods.... ” 15 U.S.C. § 1125(a). In general, “Section 43(a) prohibits misrepresentations as to the source of a product in primarily two types of activities: (1) false designation or ‘passing off in which ‘A’ sells its product under ‘B’s’ name; and (2) false representation or false advertising.” Kuklachev v. Gelfman, 600 F.Supp.2d 437, 469 (E.D.N.Y.2009). To have standing for a false advertising claim under Section 43 of the Lanham Act, “a plaintiff must be a competitor of the defendant and allege a competitive injury.” Telecom Int’l Am., Ltd. v. AT & T Corp., 280 F.3d 175, 197 (2d Cir.2001). More specifically, the ag- grieved party must demonstrate “a reasonable interest to be protected against the advertiser’s false or misleading claims, and a reasonable basis for believing that this interest is likely to be damaged by the false or misleading advertising.” Societe Des Hotels Meridien v. LaSalle Hotel Operating Partnership, 380 F.3d 126, 130 (2d Cir.2004). To obtain relief against a false or misleading advertisement, “a plaintiff must demonstrate by a preponderance of the evidence that an advertisement is literally false or that the advertisement, though literally true, is likely to mislead or confuse consumers.” McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544,1548-49 (2d Cir.1991). The elements required to succeed on claims brought under Section 32 and Section 43(a) of the Lanham Act are substantially similar. Accordingly, both claims will be analyzed together here. “In order to prevail in an action for trademark infringement, ..." }, { "docid": "1546040", "title": "", "text": "of the XTRAC system. Thus, we vacate summary judgment for the claims relating to Defendants’ representations that Irwin was the inventor of the XTRAC and remand those claims for further proceedings. III. Conclusion In sum, we affirm summary judgment on PhotoMedex’s claim that Defendants misrepresented the FDA’s clearance of their product. We conclude, however, that summary judgment should not have been granted on PhotoMedex’s claims based on Defendants’ alleged misrepresentations about when its Pharos product would be put on the market and Irwin’s role as inventor of PhotoMedex’s laser device. Those claims are remanded for further proceedings. Each party shall bear its own costs on appeal. AFFIRMED in part; VACATED in part; and REMANDED for further proceedings. . The statute states, in relevant part: (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any ... false or misleading description of fact, or false or misleading representation of fact, which— (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a). . We have recognized that a Lanham Act claim might be barred as inconsistent with another federal statute. In Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir.2008), we held that \"a party lacking standing to bring a copyright infringement suit under the Copyright Act, but who complains of competitive injury stemming from acts of alleged infringement, may [not] bring a Lanham Act claim ... whose successful prosecution would require the litigation of the underlying infringement claim.” Id. at 1141. In that case, the plaintiff, a karaoke record producer, sued competitors for purportedly misrepresenting to consumers that they had obtained licenses from every copyright holder of the songs on their records. We declined to construe the Lanham Act \"to cover misrepresentations about copyright licensing status” because doing so \"would allow competitors" }, { "docid": "23514834", "title": "", "text": "U.S.C. § 1391(c). II. Subject Matter Jurisdiction Defendant has moved to dismiss plaintiffs Lanham Act claim for lack of subject matter jurisdiction.' Defendant points to allegations in plaintiffs first amended complaint that CyberGold’s advertising services are not yet available or operational. Defendant also states that the complaint does not allege that CyberGold has begun rendering any internet advertising services regarding its new service, or that CyberGold has received any payment from prospective advertisers. Defendant argues that because CyberGold has not yet actually rendered, sold, or transported its goods or services in commerce, plaintiffs Lanham Act claim must be dismissed. Defendant also argues that plaintiffs service, under the name of GoldMail, is not yet operational, but is only in the process of soliciting and enrolling customers to its service. Defendant essentially asserts that plaintiffs Lanham Act claim is premature, as it cannot meet the “use in commerce” test required under the Lanham Act, and that, therefore, it must be dismissed for lack of subject matter jurisdiction. The Lanham Act provides: Any person who, in connection with any goods or services ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person ... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a)(1). Defendant argues that because in has not “used in commerce” any of the acts enumerated in the statute, no claim arises under the Lanham Act and thus, the Court is without jurisdiction. Defendant cites to Lang v. Pacific Marine and Supply Co., Ltd., 895 F.2d 761, 765-66 (Fed.Cir. 1990), in which the court held that because defendant’s ship, which" }, { "docid": "19036645", "title": "", "text": "commerce” under the Lanham Act because the competitor’s advertisements triggered by Google’s programs did not exhibit Rescuecom’s trademark. The court rejected the argument that Google “used” Rescuecom’s mark in recommending and selling it as a keyword to trigger competitor’s advertisements because the court read 1-800 to compel the conclusion that this was an internal use and therefore cannot be a “use in commerce” under the Lanham Act. DISCUSSION “This Court reviews de novo a district court’s grant of a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6).” PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1197 (2d Cir.1996). When reviewing a motion to dismiss, a court must “accept as true all of the factual allegations set out in plaintiffs complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally.” Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001) (citations omitted). I. Google’s Use of Rescuecom’s Mark Was a “Use in Commerce” Our court ruled in 1-800 that a complaint fails to state a claim under the Lanham Act unless it alleges that the defendant has made “use in commerce” of the plaintiffs trademark as the term “use in commerce” is defined in 15 U.S.C. § 1127. The district court believed that this case was on all fours with 1-800, and that its dismissal was required for the same reasons as given in 1-800. We believe the cases are materially different. The allegations of Rescuecom’s complaint adequately plead a use in commerce. In 1-800, the plaintiff alleged that the defendant infringed the plaintiffs trademark through its proprietary software, which the defendant freely distributed to computer users who would download and install the program on their computer. The program provided contextually relevant advertising to the user by generating pop-up advertisements to the user depending on the website or search term the user entered in his browser. Id. at 404-05. For example, if a user typed “eye care” into his browser, the defendant’s program would randomly display a pop-up advertisement of a company engaged in the field of eye care. Similarly, if the" }, { "docid": "22542297", "title": "", "text": "The Lanham Act's trademark provisions are the primary means of achieving these ends. But the Act also creates a federal remedy \"that goes beyond trademark protection.\" Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 29, 123 S.Ct. 2041, 156 L.Ed.2d 18 (2003). The broader remedy is at issue here. The Lanham Act creates a cause of action for unfair competition through misleading advertising or labeling. Though in the end consumers also benefit from the Act's proper enforcement, the cause of action is for competitors, not consumers. The term \"competitor\" is used in this opinion to indicate all those within the class of persons and entities protected by the Lanham Act. Competitors are within the class that may invoke the Lanham Act because they may suffer \"an injury to a commercial interest in sales or business reputation proximately caused by [a] defendant's misrepresentations.\" Lexmark,supra, at ----, 134 S.Ct., at 1395. The petitioner here asserts injury as a competitor. The cause of action the Act creates imposes civil liability on any person who \"uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which ... misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities.\" 15 U.S.C. § 1125(a)(1). As the Court held this Term, the private remedy may be invoked only by those who \"allege an injury to a commercial interest in reputation or sales. A consumer who is hoodwinked into purchasing a disappointing product may well have an injury-in-fact cognizable under Article III, but he cannot invoke the protection of the Lanham Act.\" Lexmark, 572 U.S., at ----, 134 S.Ct., at 1390. This principle reflects the Lanham Act's purpose of \" 'protect[ing] persons engaged in [commerce within the control of Congress] against unfair competition.' \" Id., at ----, 134 S.Ct., at 1389. POM's cause of action would be straightforward enough but for Coca-Cola's contention that a separate federal statutory regime, the FDCA, allows it" }, { "docid": "18856380", "title": "", "text": "1970). The defendants here do not pass off their products as being those of a competitor, nor do they directly disparage the products of a competitor. Although the Electronics Corp. case recognized an exception to the traditional doctrine in situations where there are only two competitors in the market, id. at 194, this exception is not applicable here since the two parties to this action concededly are not the only two manufacturers of alpine ski bindings. Therefore, plaintiff has not established a reasonable likelihood of success on the merits of its unfair competition claim. ■ Plaintiffs also claim that defendants’ advertisement violates section 43(a) of the Lanham Trade Mark Act, 15 U.S.C. § 1125(a). Section 43(a) provides that: “(a) Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.” Defendants contend that plaintiff has not established a reasonable likelihood of success on his Lanham Act claim because, as in unfair competition, palming off is an essential ingredient of a Lanham Act claim. On remand in the Electronics Corp. case, the district court held that while it had heretofore been an open question in the First Circuit whether palming off is a necessary element of a Lanham Act claim, the district court thought" }, { "docid": "5121273", "title": "", "text": "plaintiffs state law claims regarding the defendant’s use of the phrase “Og Trans Fat per serving” were expressly preempted by federal law). Accordingly, the Court finds that Plaintiffs state law claims are preempted by federal law. III. PLAINTIFF LACKS STANDING UNDER THE LANHAM ACT Standing is a jurisdictional prerequisite to bringing an action in federal court. See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir.2004) (“A suit brought by a plaintiff without Article III standing is not a ‘case or controversy,’ and an Article III federal court there-fore lacks subject matter jurisdiction over the suit.”). Prior to proceeding on the merits of an action, a district court must therefore be satisfied that it has subject matter jurisdiction. Bates v. UPS, 511 F.3d 974, 985 (9th Cir.2007) (explaining that “[standing is a threshold matter central to our subject matter jurisdiction.”). Defendants argue that Plaintiff lacks standing because he is a consumer, not a competitor. (Defs.’ Mem. at 22:24-27.) Plaintiff, meanwhile, argues that he is entitled to assert a Lanham Act claim because he seeks only injunctive relief pursuant to 15 U.S.C. § 1116. (Pis.’ Opp’n at 25:4-5.) The Lanham Act prohibits the use of false descriptions and false representations in connection with the sale or advertising of any goods or services. 15 U.S.C. § 1125. To establish standing under the “false advertising” prong of the Lanham Act, “a plaintiff must show: (1) a commercial injury based upon a misrepresentation about a product; and (2) that the injury is ‘competitive,’ or harmful to the plaintiffs ability to compete with the defendant.” Jack Russell Terrier Network of N. Ca. v. Am. Kennel Club, Inc., 407 F.3d 1027, 1037 (9th Cir.2005) (affirming dismissal of Lanham Act claim because the parties were not competitors); see also Barrus v. Sylvania, 55 F.3d 468, 469-70 (9th Cir.1995) (affirming dismissal of Lanham Act claim where “[a]s consumers, [the plaintiffs] have alleged neither commercial injury nor competitive injury.”). Thus, “[f]or a plaintiff to have standing, the parties must be competitors in the sense that they ‘vie for the same dollars from the same consumer group,’ and the" }, { "docid": "14253144", "title": "", "text": "would have standing: the mis-rated film theoretically draws young audiences away from the competitor’s film because of the misrepresentation concerning the suitability of its content. 978 F.2d at 1109; see also Barrus v. Sylvania, 55 F.3d 468, 470 (9th Cir.1995) (standing in false advertising cases based on conduct “harmful to the plaintiffs ability to compete with the defendant”). Thus, under Waits, if one participant in the marketplace makes false statements that could theoretically draw consumers away from similar offerings of other participants in the same marketplace, and those false statements implicate the purposes of the Lanham Act (such as protection of trademarks or prevention of unfair competition), then those other participants have standing to bring suit under the Lanham Act for unfair competition in the form of false advertising. a. Kournikova and GMC are Competitors Plaintiff maintains that she and GMC are competitors. (Opp. at 6). GMC contends otherwise. Although the two parties are nominally engaged in what might seem to be distinctly different businesses (athletics and publishing), that distinction is both artificial and simplistic. In reality, both of them are engaged in the entertainment business. GMC publishes Penthouse, a magazine predominantly devoted to sexually oriented themes, and markets a variety of videos and calendars. (Id.). Kournikova, though a participant in the women’s pro tennis tour, also pursues a (possibly more successful) career as a model and sex symbol and likewise markets videos and calendars. (Id.). Both parties sell these products over the Internet and through a variety of magazines and retailers. (Id. at 7). Indeed, as of the date of the drafting of this order, the Court found at Kournikova.com a photograph labeled “Hot Feature” accompanied by a photograph of Kournikova in a bikini bathing suit and the following words: “Anna’s official 2003 calendar is here! Be sure to get your copy today!” A click on the hyperlink takes one to the John F. Turner & Co. site where Kournikova’s photograph in a bathing suit appears on the left side of the screen, and Pamela Anderson in an even skimpier suit appears on the right. In the Court’s view," }, { "docid": "684136", "title": "", "text": "of the article and no misrepresentation of its inherent attributes. Chromium Industries, supra. Finally, § 43(a) covers a publisher of a controlled circulation magazine who falsely inflates the size of his audience and thereby causes reduced advertising revenues to a competing publisher, even though the misrepresentations did not refer in any way to plaintiff’s magazine or otherwise expressly take aim at an identifiable competitor. Ames Publishing Co. v. Walker-Davis Publications, Inc., 872 F.Supp. 1 (E.D.Pa.1974). These decisions implicitly or explicitly recognize that the Act proscribes sales diversions caused by false advertising of defendant’s goods, and that those diversions can be equally harmful to competitors regardless of whether the misrepresentations falsely describe defendant’s products in isolation or falsely connect its products with plaintiff’s products. In either case, there is a “false representation used in connection with goods or services,” as required by § 43(a). We see no principled basis for excluding Utah’s counterclaim from the logical thrust of these decisions. The “good” at issue here is uranium, a naturally occurring element. Although uranium can be converted and enriched to increase the concentration and facilitate the use of certain fissionable isotopes, it is hardly possible to misrepresent its inherent ingredients or qualities. After the required transformations are performed, it is the same no matter who produces or sells it. It cannot be misbranded, mislabelled, patented, or trademarked. The primary, if not the sole, difference between competitors’ products are 1) price and 2) the certainty and mode of delivery. Consequently, a construction of the Lanham Act which limited its applicability to a) trademark misuse or conduct of a similar nature or b) misrepresentations concerning the inherent qualities of uranium or c) other misrepresentations which trade on the goodwill of competitors, would effectively insulate the uranium market from the protections of the Lanham Act. We believe that the Act should be read, at minimum, to protect competitors from misrepresentations which a defendant makes about its own products and which relate to the principal bases of competition among sellers. These types of misrepresentations are likely to have direct and major impact in diverting sales to" }, { "docid": "23068877", "title": "", "text": "as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (2) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a). This section of the Lanham Act “expressly establishes a private remedy for any violation thereunder.” Sandoz, 902 F.2d at 227. “The Lanham Act.is primarily intended to protect commercial interests. A competitor in a Lan-ham Act suit does not act as a vicarious avenger of the public’s right to be protected against false advertising. Instead, the statute provides a private remedy to a commercial plaintiff who meets the burden of proving that its commercial interests have been harmed by a competitor’s false advertising.” Id. at 230 (citations omitted); see also Colligan v. Activities Club, 442 F.2d 686, 692 (2d Cir.1971) (“The Act’s purpose, as defined in § 45, is exclusively to protect the interests of a purely commercial class against unscrupulous commercial conduct.”), cert. denied, 404 U.S. 1004, 92 S.Ct. 559, 30 L.Ed.2d 557 (1971); Joseph P. Bauer, A Federal Law of Unfair Competition: What Should be the Reach of Section 43(a) of the Lanham Act?, 31 UCLA L.Rev. 671, 681 (1984) (“[T]he Act leans toward the protection of owners of trademarks from misuse of those marks, rather than the protection of the public from deception.”). Because of the Lanham Act’s primary focus upon protection of private parties from false advertising, actual harm to the party alleging a Lanham Act violation is a necessary element of a Lanham Act claim. “The plaintiff must ... show that defendant’s misrepresentation is ‘material, in that it is likely to influence the purchasing decision.’ ” U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 922 (3d Cir.1990) (quoting Toro Co. v. Textron, Inc., 499 F.Supp. 241, 251 (D.Del.1980) (Stapelton, J.)); see also Sandoz, 902 F.2d at" }, { "docid": "5121274", "title": "", "text": "only injunctive relief pursuant to 15 U.S.C. § 1116. (Pis.’ Opp’n at 25:4-5.) The Lanham Act prohibits the use of false descriptions and false representations in connection with the sale or advertising of any goods or services. 15 U.S.C. § 1125. To establish standing under the “false advertising” prong of the Lanham Act, “a plaintiff must show: (1) a commercial injury based upon a misrepresentation about a product; and (2) that the injury is ‘competitive,’ or harmful to the plaintiffs ability to compete with the defendant.” Jack Russell Terrier Network of N. Ca. v. Am. Kennel Club, Inc., 407 F.3d 1027, 1037 (9th Cir.2005) (affirming dismissal of Lanham Act claim because the parties were not competitors); see also Barrus v. Sylvania, 55 F.3d 468, 469-70 (9th Cir.1995) (affirming dismissal of Lanham Act claim where “[a]s consumers, [the plaintiffs] have alleged neither commercial injury nor competitive injury.”). Thus, “[f]or a plaintiff to have standing, the parties must be competitors in the sense that they ‘vie for the same dollars from the same consumer group,’ and the alleged misrepresentation must at least theoretically effect a diversion of business from the plaintiff to the defendant.” Traffic-School.com, Inc. v. Edriver, Inc., 633 F.Supp.2d 1063, 1070 (C.D.Cal.2008) (Anderson, J.) (quoting Kournikova v. Gen. Media Commnc’ns, Inc., 278 F.Supp.2d 1111, 1117-18 (C.D.Cal.2003) (Feess, J.)). Regardless of whether Plaintiff seeks equitable relief or damages, he must demonstrate standing to assert a claim in federal court. See Bates, 511 F.3d at 985. Here, Plaintiff alleges that he “purchased the [Hostess 100 Calorie Packs] for personal, family or household purposes.” (First Am. Compl. at ¶ 108.) He also seeks injunctive relief on behalf of class members who purchase Hostess 100 Calorie Packs “for their own use rather than resale or distribution.” (Id. at ¶ 62.) Plaintiff, by his own admission, is a consumer, not a competitor. Because Plaintiff alleges neither commercial nor competitive injury, he is precluded from asserting a false advertising claim under the Lanham Act. The Court therefore dismisses Plaintiffs Lanham Act claim with prejudice due to lack of standing. CONCLUSION Based on the foregoing, the Court" }, { "docid": "23620241", "title": "", "text": "the commercial injury necessary for Lanham Act standing. See Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d 186, 190 (2d Cir.1980); see also Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 210 (9th Cir.1989) (holding that “a competitor need not prove [past] injury when suing to enjoin conduct that violates section 43(a),” in part because the “competitor may suffer future injury”). We have generally presumed commercial injury when defendant and plaintiff are direct competitors and defendant’s misrepresentation has a tendency to mislead consumers. In Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir.1992), we held that a plaintiff bringing a false advertising suit had to show a “discernibly competitive injury,” and gave the following example: If a film’s distributor wrongfully indicates that a film is “PG”-rated when in reality it should be “R”-rated, a competitor with a PG-rated film would have standing: the misrated film theoretically draws young audiences away from the competitor’s film because of the misrepresentation concerning the suitability of its content. Id. at 1109. Thus, when plaintiff competes directly with defendant, a misrepresentation will give rise to a presumed commercial injury that is sufficient to establish standing. There are good reasons to presume that a competitor bringing a false advertising claim has suffered a commercial injury. Competitors “vie for the same dollars from the same consumer group,” and a misleading ad can upset their relative competitive positions. Kournikova v. Gen. Media Commc’ns, Inc., 278 F.Supp.2d 1111, 1117 (C.D.Cal.2003). Moreover, the Lanham Act is at heart a consumer protection statute. U-Haul Int’l, Inc. v. Jartran, Inc., 681 F.2d 1159, 1162 (9th Cir.1982) (“U-Haul /”); see 5 J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition § 27:25 (4th ed. 2010) [hereinafter McCarthy ]; see also Alex Kozinski, Trademarks Unplugged, 68 N.Y.U. L.Rev. 960, 964 (1993) (“The great evil the Lanham Act seeks to prevent is that of consumers being duped into buying a watch they later discover was made by someone other than Rolex.” (footnote omitted)). Requiring proof that defendant’s ads caused plaintiff to lose sales as a prerequisite to bringing suit would frustrate its ability" }, { "docid": "23620242", "title": "", "text": "defendant, a misrepresentation will give rise to a presumed commercial injury that is sufficient to establish standing. There are good reasons to presume that a competitor bringing a false advertising claim has suffered a commercial injury. Competitors “vie for the same dollars from the same consumer group,” and a misleading ad can upset their relative competitive positions. Kournikova v. Gen. Media Commc’ns, Inc., 278 F.Supp.2d 1111, 1117 (C.D.Cal.2003). Moreover, the Lanham Act is at heart a consumer protection statute. U-Haul Int’l, Inc. v. Jartran, Inc., 681 F.2d 1159, 1162 (9th Cir.1982) (“U-Haul /”); see 5 J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition § 27:25 (4th ed. 2010) [hereinafter McCarthy ]; see also Alex Kozinski, Trademarks Unplugged, 68 N.Y.U. L.Rev. 960, 964 (1993) (“The great evil the Lanham Act seeks to prevent is that of consumers being duped into buying a watch they later discover was made by someone other than Rolex.” (footnote omitted)). Requiring proof that defendant’s ads caused plaintiff to lose sales as a prerequisite to bringing suit would frustrate its ability to act as the fabled vicarious avenger of the consuming public. 5 McCarthy § 27:31; see Johnson & Johnson, 631 F.2d at 191. But see B. Sanfield, Inc. v. Finlay Fine Jewelry Corp., 258 F.3d 578, 580-81 (7th Cir.2001) (competitor “is not a public prosecutor” and must therefore “prove past or potential injury”). We need not decide today whether our presumption of commercial injury is conclusive or rebuttable because defendants didn’t point to any evidence — such as an increase in plaintiffs’ sales — that might tend to rebut the presumption. See B. Sanfield, Inc., 258 F.3d at 581 (finding no past or future injury in part because plaintiffs “sales rose during the months covered by its claims”). We therefore presume that plaintiffs suffered a commercial injury. C. Plaintiffs’ Lanham Act standing thus turns on the second half of Jack Russell’s commercial injury prong: whether DMV.org’s ads are misleading. See Jack Russell, 407 F.3d at 1037. After extensively reviewing the evidence, the district court found that DMV.org’s entire site had a “tendency to deceive a" }, { "docid": "20711368", "title": "", "text": "contention, where those statements appear on the product packaging, and the relevant time period in which the statements were used. As such, they have satisfied the requisite “who, what, when, where, and how” of the misconduct charged. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir.2009). G. Standing to bring the Lanham Act / False Advertising Claim. Defendant seek judgment as a matter of law on plaintiffs’ Lanham Act claims and again raises a standing argument, this time pointing out that the Lanham Act governs unfair competition only between competitive entities. Because plaintiffs are private individuals (indeed, consumers), defendant insists they lack standing to sue for false advertising under the Act. Under the Lanham Act, any person who uses a “false description or representation” that is “in connection with any goods” is liable to another “who believes he is or is likely to be damaged by the use of any such false description or representation.” 15 U.S.C. § 1125(a). See generally Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 835 (9th Cir.2002) (citing Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997)). The Lanham Act is primarily intended to protect commercial interests from unfair competition. See Mut. Pharm. Co. v. Ivax Pharms., Inc., 459 F.Supp.2d 925, 934-34 (C.D.Cal.2006) (citing Sandoz Pharm. Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 230 (3rd Cir. 1990)). In Jack Russell Terrier Network of Northern California v. American Kennel Club, 407 F.3d 1027, 1037 (9th Cir.2005), the Court clarified that “different causes of action alleged pursuant to the different subsections of 15 U.S.C. § 1125(a) have different standing requirements.” “[F]or standing pursuant to the ‘false advertising’ prong of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), a plaintiff must show: (1) a commercial injury based upon a misrepresentation about a product; and (2) that the injury is “competitive,” or harmful to the plaintiffs ability to compete with the defendant.” Id. (citations omitted). Plaintiffs here do not argue that they mean to compete in any way with Quaker Oats and therefore cannot satisfy the second" }, { "docid": "5353883", "title": "", "text": "v. Ziebart Int’l Corp., 11 F.3d 1163 (3d Cir.1993). In that case, the issue was whether a consumer whose purchase was allegedly influenced by false advertising had standing under the Lanham Act to bring a suit for damages. We held that consumers lack standing to bring false advertising claims under the Lanham Act, and we reaffirmed the principle announced in Thom that, the plain language of § 43(a) notwithstanding, prudential concerns dictate that a sufficiently direct injury be alleged before standing to sue is recognized: The “sufficient direct injury” alleged by Thorn was that his investment in Florida-Eastern was destroyed by the misconduct of one of Florida-Eastern’s chief competitors. Thus, this Court’s determination that the plaintiff in Thorn had a “reasonable interest to be protected under section 43(a)’.’ permitted a false advertising suit by one who, while not in his owm person a competitor of the alleged rogue enterprise, was, nonetheless, so situated that he could quite reasonably be regarded as a surrogate for such competitor. Serbin, 11 F.3d at 1175 (emphasis added). We fleshed out the concept of “reasonable interest” by quoting extensively from the Callmann treatise relied upon in Thom in formulating our “reasonable interest” requirement: The language of the Lanham Act ... states that the wrongdoer in cases of false advertising is “liable to a civil action ... by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.” Indeed the statute goes further in recognizing that the plaintiff need not even be “in the same line of business and in competition with defendant”; it will be sufficient, in the case of a false designation of origin, that the plaintiff is “doing business in the locality falsely indicated” and in the case of a false description of goods of services, that he believes he is or is likely to be damaged, because, for instance, the parties are doing business on different economic levels. The dispositive question should be whether plaintiff has a reasonable interest to be protected against false advertising. Serbin, 11 F.3d at" }, { "docid": "648451", "title": "", "text": "particular area of trademark infringement, “[assuming that a particular mark warrants protection under the Lanham Act, the requisite likelihood of success on the merits and irreparable harm can both be established by showing a ‘likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or ... simply confused, as to the source of the goods in question’ ” (Western Publishing Co. v. Rose Art In dus., Inc., supra, 910 F.2d at p. 59 [citations omitted]). The issuance of a preliminary injunction, of course, is considered an extraordinary equitable remedy, hence the requirement that entitlement be “clearly” shown (see Berrigan v. Norton, 451 F.2d 790, 793 [2d Cir.1971]; see also 11 C. Wright & A. Miller, Federal Practice & Procedure § 2948 [1973 & Supp.1990] [collecting cases]). With these basic principles in mind, the Court now turns to the merits of the application for a preliminary injunction. C. Lanham Act i. Generally Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), provides a statutory remedy for trademark or trade dress infringement and unfair competition to a party injured by a competitor’s false designation of origin of its product, whether or not the aggrieved party has a registered trademark (LeSportsac, Inc. v. K Mart Corp., supra, 754 F.2d at p. 75). Section 43(a) provides an additional remedy for the false or misleading or deceptive advertisement of facts. In short, the Lanham Act provides civil redress to one damaged by unfair competition through false or misleading advertising and/or trademark or trade dress infringement (see generally Bauer, A Federal Law of Unfair Competition: What should be the Reach of Section 43(a) of the Lanham Act?, 31 UCLA L.Rev. 671, 685-703 [1984] [broad overview of scope and limitations of Lanham Act]). Section 43(a), as amended, provides in relevant part as follows: “(a) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any ... false or misleading description of fact, or false or misleading representation of fact, which—" }, { "docid": "20369045", "title": "", "text": "can be based on the wax models the Plaintiff alleges were produced by Aghjayan during his employment. There is no allegation in the Amended Complaint that they were ever copyrighted. Because the Plaintiff has not alleged a copyright violation, its copyright claim is dismissed. B) The Lanham Act Claims Are Dismissed in Part and Retained in Part — Counts II Through TV Count II through IV of the Amended Complaint alleges claims of federal trademark infringement, unfair competition, false designation of origin and false and misleading representations in commerce, and false advertising under Section 32 and 43(a) of the Lanham Act. 15 U.S.C. §§ 1114,1125(a). The Lanham Act “serves to protect the holders of trademarks from the promotion and sale of competing products likely to confuse consumers as to their source.” Philip Morris USA Inc. v. U.S. Sun Star Trading, Inc., 2010 WL 2133937, at *4 (E.D.N.Y. Mar. 11, 2010). Section 32 of the Lanham Act prohibits trademark infringement and provides in relevant part; (1) Any person who shall, without the consent of the registrant— (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale ... of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; shall be liable in a civil action .... 15 U.S.C. § 1114(a)(1). Section 43(a) of the Lanham Act, and unfair competition law in general, prohibits a person from using “any word, term, name, symbol, or device, or any combination thereof ... which is likely to cause confusion ... as to the origin, sponsorship or approval of his or her goods.... ” 15 U.S.C. § 1125(a). In general, “Section 43(a) prohibits misrepresentations as to the source of a product in primarily two types of activities: (1) false designation or ‘passing off in which ‘A’ sells its product under ‘B’s’ name; and (2) false representation or false advertising.” Kuklachev v. Gelfman, 600 F.Supp.2d 437, 469 (E.D.N.Y.2009). To have standing for a false advertising claim under Section 43 of the Lanham Act," } ]

[ { "docid": "23196731", "title": "", "text": "S.Ct. 270, 274, 4 L.Ed.2d 252 (1960). “Neither by depriving the grand jury of its opportunity to evaluate the credibility of witnesses nor by making prejudicial remarks to sway the grand jury may the prosecutor deny the accused this substantial right.” Gallo, 394 F.Supp. at 314. The prosecutor has a duty of good faith to the Court, the grand jury, and the defendant. United States v. Basurto, 497 F.2d 781, 786 (9th Cir. 1974). In Basurto, this Court held that the defendants’ right to due process was violated where they had to stand trial on an indictment which the Government knew was based partially on perjured testimony. Furthermore, trial on such an indictment failed to comport with “fastidious regard for the honor of the administration of justice.” Id. at 787, quoting Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 124, 76 S.Ct. 663, 100 L.Ed. 1003 (1956). Judge Hufstedler concurred with the majority’s result in Basurto, but objected to the constitutional basis for the decision. She relied on the Court’s power to supervise the administration of criminal justice, which power extends to grand jury proceedings. Basurto, 497 F.2d at 793. “An important function of our supervisory power is to guarantee that federal prosecutors act with due regard for the integrity of the administration of justice.” Id. The power of the Court to dismiss an indictment for prosecutorial misconduct, on the basis of its supervisory powers was reaffirmed in United States v. Owen, 580 F.2d 365, 367 (9th Cir. 1978): “Under its inherent supervisory powers, a federal court is empowered to dismiss an indictment on the basis of governmental misconduct. ... As such, dismissal is used as a prophylactic tool for discouraging future deliberate governmental impropriety of a similar nature. . . .” (Citations omitted). See also Wright, Federal Practice and Procedure § 101 at 151. The facts of each case determine when Government conduct has placed in jeopardy the integrity of the criminal justice system. Although no perjury has been alleged in the present case, we believe the prosecutor’s behavior has exceeded the limits of acceptability. In United" } ]

[ { "docid": "2116855", "title": "", "text": "KENNEDY, Circuit Judge: The appellants are Sammy Herrera Vene-gas and Eddie Adrian Vindiola. Upon entry of conditional guilty pleas, they were convicted of violations under 18 U.S.C. § 1962 and now appeal on the single issue that the superseding indictment that was the basis of the conviction should have been dismissed because it was obtained by prosecutorial misconduct before the grand jury. The trial court denied the motion to dismiss. We find no merit whatsoever to the appellants’ contention, and we affirm. The grand jury has historically been independent of both the prosecution and the courts, In re Grand Jury Investigation of Hugle, 754 F.2d 863, 864 (9th Cir.1985), and as an independent entity the grand jury has broad powers to investigate matters before it, United States v. Sells Engineering, Inc., 463 U.S. 418, 423-24, 103 S.Ct. 3133, 3137-38, 77 L.Ed.2d 743 (1983). Because of separation of powers concerns, courts very rarely intrude on the conduct of grand jury proceedings. United States v. Cederquist, 641 F.2d 1347, 1352-53 (9th Cir.1981). Under limited circumstances, however, a court may dismiss an indictment for prosecutorial misconduct before the grand jury based on due process grounds, see, e.g., United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir.1974), or the court’s inherent supervisory powers, see, e.g., United States v. Samango, 607 F.2d 877, 881 (9th Cir.1979); Basurto, 497 F.2d at 793-94 (Hufstedler, J., concurring specially). A defendant who challenges the indictment on either ground bears a heavy burden to demonstrate that the prosecutor engaged in flagrant misconduct deceiving the grand jury or significantly impairing its exercise of independent, unbiased judgment. United States v. De Rosa, 783 F.2d 1401, 1405, 1406 (9th Cir.1986), cert. denied, — U.S. -, 106 S.Ct. 3282, 91 L.Ed.2d 57 (1986); United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir.), cert. denied, 461 U.S. 932, 103 S.Ct. 2097, 77 L.Ed.2d 305 (1983). Moreover, the defendant must show that the prosecutorial misconduct prejudiced him. Al Mudarris, 695 F.2d at 1186-87; United States v. Owen, 580 F.2d 365, 367 (9th Cir.1978). That burden has not been met here. Appellants’ first argument" }, { "docid": "21573107", "title": "", "text": "FLETCHER, Circuit Judge: Benjamin and several co-defendants, members of Synanon, have been indicted for obstruction of justice and conspiracy to obstruct justice, in connection with the alleged destruction of documents pertaining to various civil and criminal proceedings. Defendants appeal the district court’s denial of their motions to dismiss the indictments. We affirm. A motions panel of this court has held the district court’s order to be an appeal-able collateral order. United States v. Benjamin, 812 F.2d 548 (9th Cir.1987); United States v. Dederich, 825 F.2d 1317 (9th Cir.1987). These opinions set forth the factual background of the case. DISCUSSION This court reviews de novo a district court’s determination as to whether a prosecutor’s alleged misconduct before a grand jury warrants dismissal of the indictment. United States v. De Rosa, 783 F.2d 1401, 1404 (9th Cir.1986). Although courts have the power to dismiss indictments either on due process grounds, or under their inherent supervisory power over the administration of justice, that power is exercised sparingly. United States v. Busher, 817 F.2d 1409, 1411 (9th Cir.1987). A defendant challenging an indictment has the burden of demonstrating that the prosecutor engaged in flagrant misconduct that deceived the grand jury or significantly impaired its ability to exercise independent judgment. Id. The leading case in this circuit showing circumstances justifying dismissal is United States v. Samango, 607 F.2d 877 (9th Cir.1979). There, the prosecutor’s presentation of the transcript testimony of a witness of dubious credibility was combined with the prosecutor’s unduly rushing the grand jury decision, improper and prejudicial transcript testimony from the defendant, and testimony from only one live witness, a DEA agent, that was “laden with conclusions concerning the guilt of several defendants, [and] summarized the DEA’s investigations, much of which he had not been involved with personally.” 607 F.2d at 879, 881. The court concluded that the cumulative effect of these “errors and indiscretions, none of which alone might have been enough to tip the scales, operated to the defendants’ prejudice by producing a biased grand jury.” Id. at 884. In light of Samango we view the alleged errors by themselves and" }, { "docid": "3921163", "title": "", "text": "criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of the judgment or order appealed from.... Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. The defendant argues that her appeal should be deemed timely because of a recent change in the law of the circuit ex panding the availability of interlocutory review. When the district court issued its order, precedent precluded interlocutory review of a defendant’s claim of prosecutorial misconduct before a grand jury. See United States v. Garner, 632 F.2d 758, 761-66 (9th Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981). On March 11, 1987 — three months after the district court denied the defendant’s motion —this court overruled Gamer in Benjamin, 812 F.2d at 550-54. Benjamin held that interlocutory review must be made available for a defendant’s claim of prose-cutorial misconduct before the grand jury because the Supreme Court had recently decreed that such review no longer could be obtained on post-conviction appeal. See id. at 551-53 (relying upon the Supreme Court’s holding in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed. 50 (1986), that a supervening jury verdict of guilty establishes that any error in the grand jury proceeding was harmless). No court has decided whether the failure to file a notice of appeal within the statutory time period is excused where appeal was apparently precluded by existing precedent but a subsequent change in case law made the interlocutory review locally available. However, the Federal Rules of Appellate Procedure and the case law interpreting them indicate that we have no statutory jurisdiction to consider the defendant’s appeal. “[Cjourts have consistently viewed the filing deadlines of Federal Rule of Appellate Procedure 4(b) as ‘both mandatory and jurisdictional.’ ” United States v. Avendano-Camacho, 786" }, { "docid": "9465941", "title": "", "text": "we have not been receptive to an expansive reading of this exception to the final judgment rule.”). Respondents argue, however, that in light of the Supreme Court’s decision in United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), the denial of their motions to dismiss the indict ment is effectively unreviewable following the conclusion of trial, and therefore should be subject to interlocutory review. Respondents argue that, if they are acquitted, the denial of their motions to dismiss will be moot; however, if they are convicted, the grand jury abuses of which they complain will be deemed harmless error under Mechanik, and thus insufficient to warrant reversing the convictions. Respondents find support for this argument in the dissenting opinion in Mechanik, 475 U.S. at 81 n. 1, 106 S.Ct. at 947 n. 1 (Marshall, J., dissenting), as well as in two circuit court cases, see United States v. Dederich, 825 F.2d 1317 (9th Cir.1987); United States v. Benjamin, 812 F.2d 548 (9th Cir.1987). At least two other circuits, however, have reached the opposite conclusion. See United States v. LaRouche Campaign, 829 F.2d 250 (1st Cir.1987); United States v. Taylor, 798 F.2d 1337 (10th Cir.1986). We turn now to consider whether respondents’ appeal is permissible under the Cohen collateral order doctrine. 1. The September SO Order We need not linger over respondents’ contention that the September 30, 1987 order of the district court, which denied the motions to dismiss the indictment for alleged grand jury voting irregularities and for lack of specificity as to the location of the alleged criminal activity, is subject to interlocutory review. Even if we assume, for the sake of argument, that this order could be the subject of an interlocutory appeal, a straightforward application of Rule 4(b) of the Federal Rules of Appellate Procedure would preclude this court from entertaining the appeal. Rule 4(b) states, inter alia, that “[i]n a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of the judgment or order appealed from,” unless the" }, { "docid": "2116856", "title": "", "text": "court may dismiss an indictment for prosecutorial misconduct before the grand jury based on due process grounds, see, e.g., United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir.1974), or the court’s inherent supervisory powers, see, e.g., United States v. Samango, 607 F.2d 877, 881 (9th Cir.1979); Basurto, 497 F.2d at 793-94 (Hufstedler, J., concurring specially). A defendant who challenges the indictment on either ground bears a heavy burden to demonstrate that the prosecutor engaged in flagrant misconduct deceiving the grand jury or significantly impairing its exercise of independent, unbiased judgment. United States v. De Rosa, 783 F.2d 1401, 1405, 1406 (9th Cir.1986), cert. denied, — U.S. -, 106 S.Ct. 3282, 91 L.Ed.2d 57 (1986); United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir.), cert. denied, 461 U.S. 932, 103 S.Ct. 2097, 77 L.Ed.2d 305 (1983). Moreover, the defendant must show that the prosecutorial misconduct prejudiced him. Al Mudarris, 695 F.2d at 1186-87; United States v. Owen, 580 F.2d 365, 367 (9th Cir.1978). That burden has not been met here. Appellants’ first argument is that the grand jurors’ discussions with the prosecutors and witnesses about breaking up the Nuestra Familia (NF), to which appellants belong, were beyond the scope of the investigation into the gang’s past criminal activity and led the grand jurors to return the indictment as a means of quelling future activity by the NF. The prosecutors asked ex-gang members how they would break up the NF, since state prison authorities were unable to control the gang’s growth, and those inquiries in turn generated questions from and discussions with the grand jurors about breaking up the NF by convicting members of the NF in federal court and then transferring them to federal prisons where they would be unable to organize. In addition, appellants claim the prosecutors elicited information to shock the grand jurors into returning the indictment; ex-gang members who testified told the grand jurors they did so at great risk to their lives because the NF is a radical and dangerous group. If grand jurors have questions why indictments are necessary in a case and" }, { "docid": "3921170", "title": "", "text": "30 L.Ed.2d 296 (1971) (setting forth a three-part test for determining whether a judicial decision should be applied retroactively). We sympathize with the defendant’s belief that retroactive application of Benjamin to preclude any appeal would “pro duce substantial inequitable results.” Id. at 107, 92 S.Ct. at 355 (quoting Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1968)); cf. Gibson v. United States, 781 F.2d 1334, 1339-40 (9th Cir.1986) (holding that a shortened statute of limitations should not be applied retroactively as to bar otherwise valid civil claims), cert. denied, _ U.S. _, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987); Barina v. Gulf Trading and Transp. Co., 726 F.2d 560, 562-64 (9th Cir.1984) (same); Wiltshire v. Standard Oil Co. of California, 652 F.2d 837, 840-42 (9th Cir.1981) (finding that it would be inequitable to apply retroactively changes in EEOC filing deadlines), cert. denied, 455 U.S. 1034, 102 S.Ct. 1737, 72 L.Ed.2d 153 (1982). Because we lack jurisdiction to hear the defendant’s appeal, any statements that we could make here as to the appealability after trial of the defendant’s claims would constitute dicta. We therefore decline to resolve the issue. We emphasize, however, that the defendant may bring a post-trial appeal arguing that Benjamin should not be applied retroactively so as to bar her appeal. We therefore hold that we lack jurisdiction to hear the defendant’s appeal from the district court’s denial of her motions for dismissal of the indictment on the ground of prosecutorial misconduct, for disqualification of the Strike Force, and for disclosure of grand jury transcripts. We do not intend to preclude the defendant from seeking review of the district court’s orders upon post-trial appeal. CONCLUSION We affirm the district court’s suppression in part of statements made by the defendant to government agents and attorneys. We lack jurisdiction to hear the defendant’s appeal from the district court’s denial of her motions for dismissal of the indictment, disqualification of the prosecutor, and disclosure of grand jury transcripts, as well as her cross-appeal from the partial denial of her motion to suppress evidence." }, { "docid": "2506732", "title": "", "text": "for decision, if necessary, when the merits of this appeal are addressed. . “A major characteristic of the denial or granting of a claim appealable under Cohen’s ‘collateral order’ doctrine is that 'unless it can be reviewed before [the proceedings terminate], it can never be reviewed at all.”’ Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (quoting Stack v. Boyle, 342 U.S. 1, 12, 72 S.Ct. 1, 7, 96 L.Ed. 3 (1951) (brackets in original)). . We reject the government's contention that the right asserted by appellants under Rule 6(e) is not “important\" enough to justify the delay in trial that is inherent in an interlocutory appeal. Rule 6(e) certainly protects important interests in ensuring grand jury secrecy. Whether the facts of appellants’ case justify the remedy of dismissal of the indictment is not to be determined as a threshold test of appealability, but is rather a matter for determination when the appeal is heard on its merits. DAVID R. THOMPSON, Circuit Judge, dissenting: This circuit has held that a district court’s pre-trial order denying a motion to dismiss an indictment because of grand jury irregularities is not immediately appealable. United States v. Garner, 632 F.2d 758, 765 (9th Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981) . See United States v. Bendis, 681 F.2d 561, 569 (9th Cir.1981), cert. denied, 459 U.S. 973, 103 S.Ct. 306, 74 L.Ed.2d 286 (1982) ; United States v. Linton, 655 F.2d 930, 932 (9th Cir.1980) (per curiam), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 301 (1981). In Garner we stated: We are convinced that, especially in the criminal context, the policy against piecemeal appellate adjudication is sound and that the exceptions to the rule should be few. To allow an interlocutory appeal in this instance would create nothing short of chaos in the criminal justice system. Id. at 766. Today, however, the majority would permit piecemeal appellate adjudication. In its view, United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), will “deprive appellants of" }, { "docid": "16196153", "title": "", "text": "BRUNETTI, Circuit Judge: Appellants Oscar Armando Larrazo-lo, Jr. and Roberto Larrazolo were indicted along with Jose Luis Ramos-Rodriguez, Oscar A. Larrazolo, Sr., Edward DeVaney and Thomas John O’Connell, for conspiring to distribute and to possess marijuana with intent to distribute in excess of 1,000 kilograms in violation of 21 U.S.C. 841(a)(1), 841(b)(l)(A)(vii), and 846. The trial court denied the motions to dismiss the grand jury indictment and each defendant filed a notice of interlocutory appeal in a timely manner. Interlocutory review of a motion to dismiss the grand jury indictment must be made available for a defendant’s claim of prosecutorial misconduct before the grand jury because such review no longer can be obtained on post conviction appeal, United States v. Benjamin, 812 F.2d 548, 549 (9th Cir.1987). We affirm the trial court. STANDARD OF REVIEW A district court’s determination of whether a prosecutor’s alleged misconduct before a grand jury warrants dismissal of the indictment is subject to de novo review. United States v. DeRosa, 783 F.2d 1401, 1404 (9th Cir.), cert. denied, 477 U.S. 908, 106 S.Ct. 3282, 91 L.Ed.2d 571 (1986); United States v. Sears, Roebuck & Co., Inc., 719 F.2d 1386, 1392 n. 9 (9th Cir.1983), cert. denied, 465 U.S. 1079, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984). However, the separation of powers doctrine mandates judicial concern for the independence of the prosecutor and the grand jury. DeRosa, 783 F.2d at 1404. The Fifth Amendment gives this institution its independent stature. United States v. Chanen, 549 F.2d 1306, 1312 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977). Therefore, courts have been reluctant to intrude on its proceedings. DeRosa, 783 F.2d at 1404; United States v. Al Mudarris, 695 F.2d 1182, 1184 (9th Cir.1982), cert. denied, 461 U.S. 932, 103 S.Ct. 2097, 77 L.Ed.2d 305 (1983). I STATEMENT OF FACTS A. Facts Leading Up to the Arrest On January 25, 1987, Drug Enforcement Agency (DEA) agents in Nevada telephoned DEA agents in Tucson, Arizona, that Edward DeVaney had access to six tons of marijuana in Tucson. The Nevada DEA agents were involved in" }, { "docid": "3921162", "title": "", "text": "case-by-case determinations whether a given defendant’s claims are within the scope of the government’s interlocutory appeal. It must be remembered that interlocutory review is the child of necessity. Given the availability of post-trial appellate review of district court orders denying motions to suppress, there is no need for interlocutory review. By contrast, interlocutory review of a district court’s order suppressing evidence is made necessary by the double jeopardy clause, which prevents the government from obtaining post-acquittal review of an order suppressing evidence. We therefore must decline to hear the defendant's claim that the district court improperly denied in part her motion for suppression of her statements. The defendant may appeal, if necessary, the partial denial of her motion for suppression upon post-trial appeal. 2. Defendant’s Appeal. The defendant filed her notice of a Benjamin interlocutory appeal nearly four months after the district court denied her motions to dismiss the indictment on the ground of prosecutorial misconduct, to disqualify the Strike Force, and to require disclosure of the grand jury transcript. Under Fed.R.App.P. 4(b): In a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of the judgment or order appealed from.... Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. The defendant argues that her appeal should be deemed timely because of a recent change in the law of the circuit ex panding the availability of interlocutory review. When the district court issued its order, precedent precluded interlocutory review of a defendant’s claim of prosecutorial misconduct before a grand jury. See United States v. Garner, 632 F.2d 758, 761-66 (9th Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981). On March 11, 1987 — three months after the district court denied the defendant’s motion —this court overruled Gamer in Benjamin, 812" }, { "docid": "19362789", "title": "", "text": "PER CURIAM: The government moves to dismiss these interlocutory criminal appeals for lack of jurisdiction based on the Supreme Court’s decision in Midland Asphalt Corp. v. United States, — U.S. -, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989). We grant the motion and dismiss the appeals. I. BACKGROUND On February 10, 1988, a federal grand jury in Arizona returned an indictment against Jose Ernesto Moreno-Green, Joaquin Arturo Contreras, Oscar Lara Navar-rete, Jose Ignacio Acosta-Medina, and Ale-jo Hernandez-Dominguez. The defendants were charged with possession of marijuana with intent to distribute. On August 17, 1988, the defendants moved to dismiss the indictment alleging prosecutorial misconduct before the grand jury. The district court denied the motion and the defendants filed timely notices of appeal. II. ANALYSIS A. Basis for Interlocutory Jurisdiction Defendants do not state the basis for our jurisdiction over the interlocutory appeals. If defendants base jurisdiction on our recently vacated decision in United States v. Benjamin, 812 F.2d 548 (9th Cir.1987), vacated, — U.S. -, 109 S.Ct. 1948, 104 L.Ed.2d 418 (1989), then we clearly lack jurisdiction. See Midland Asphalt, 109 S.Ct. at 1498. If, as it appears, defendants rely on our related decision in United States v. Dederich, 825 F.2d 1317 (9th Cir. 1987), then we must decide whether Dede-rich is still valid law after Midland Asphalt. We must first determine, therefore, if defendants’ allegations fall within Dede-rich. In Dederich, we held that alleged prosecutorial misconduct that merely affects the grand jury charging process is reviewable on interlocutory appeals. Id. at 1320; see also United States v. Howard, 867 F.2d 548, 550 (9th Cir.1989). Alleged errors “rais[ing] issues of fundamental fairness that implicate substantial rights protected by the due process clause” may not be reviewed under Dederich. Howard, 867 F.2d at 550. Such errors must be appealed after trial. Id. In this case, the defendants contend the indictment should be dismissed because: (1) the government failed to present to the grand jury exculpatory information concerning the credibility of an informant witness; (2) the government improperly presented to the grand jury evidence of a gun found in one of the defendant’s" }, { "docid": "14676228", "title": "", "text": "SNEED, Circuit Judge: Schiff appeals from the district court’s order denying her motion to dismiss the indictment and motion for disclosure of grand jury transcripts. We dismiss the appeal. I. FACTS AND PROCEEDINGS BELOW This appeal is a result of a Justice Department investigation of the Synanon Church. This court has already heard several appeals by Ms. Schiff s codefendants. See United States v. Benjamin, 852 F.2d 413 (9th Cir.1988); United States v. Dederich, 825 F.2d 1317 (9th Cir.1987); United States v. Benjamin, 812 F.2d 548 (9th Cir.1987) (Benjamin I). Ms. Schiff and eight codefendants are charged in a twenty-two count indictment with conspiracy, concealment of material facts, obstruction of justice, and perjury. Schiff filed a motion to dismiss the indictment based on prosecutorial misconduct. She alleges that the government engaged in “privilege harassment” by subpoenaing her to testify before the grand jury knowing she would invoke her Fifth Amendment privilege. She also appeals the district court’s denial of her motion to produce grand jury transcripts. II. JURISDICTION The district court had jurisdiction over this case under 18 U.S.C. § 3231 (1982). Our jurisdiction turns on whether we have jurisdiction to entertain an interlocutory appeal. The Supreme Court recently held that an order denying a motion to dismiss the indictment for a violation of Fed.R.Crim.P. 6(e) is not an appealable collateral order. See Midland Asphalt v. United States, — U.S. —, —, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 879 (1989). Its reasoning provides no basis for concluding that an order denying a motion for discovery is an appealable collateral order while an order denying a motion to dismiss the indictment is not. Nor do Schiff’s objections justify an interlocutory appeal by implicating the grand jury clause of the Fifth Amendment. “Only a defect so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment to be an indictment, gives rise to the constitutional right not to be tried.” Id. at 1499-1500. Accordingly, we hold that we lack jurisdiction to entertain Schiff's appeal of the district court’s order denying her motion to dismiss the" }, { "docid": "19362793", "title": "", "text": "opinion). The Court held that an order denying a motion to dismiss an indictment for an alleged Rule 6(e) violation was not immediately appeal-able under the collateral order doctrine. Id. The Court did not discuss interlocutory appeals based on prosecutorial misconduct. Nevertheless, this court has decided that we lack jurisdiction to entertain an appeal of a district court order denying a motion to dismiss an indictment based on alleged prosecutorial misconduct. United States v. Shah, 878 F.2d 272, 275 (9th Cir.1989). Our analysis of Midland further supports this conclusion. In both Benjamin and Dederich, we noted that under the harmless error rule of Mechanik v. United States, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), a defendant may not challenge the propriety of the grand jury’s charging process once the pet-it jury renders a guilty verdict. Dederich, 825 F.2d at 1320; Benjamin, 812 F.2d at 551-53. In Mechanik, the Supreme Court held that an alleged violation of Fed.R. Crim.P. 6(d) was rendered harmless by a petit jury’s verdict. Mechanik only addressed an alleged violation of Rule 6(d), which limits the number of witnesses who may be present in a grand jury session. The Court did not expressly decide whether the harmless error rule applies to other grand jury errors such as a violation of the secrecy provisions or an allegation of pros-ecutorial misconduct. Nevertheless, both Benjamin and Dederich assumed that the harmless error rule extends beyond Rule 6(d) violations. See Dederich, 825 F.2d at 1320; Benjamin, 812 F.2d at 553. In Midland, the Supreme Court did not decide whether this court’s broad interpretation of the Mechanik harmless error rule was correct. Instead, the Court held that, regardless of the scope of Mechanik, an appeal from a denial of a motion to dismiss an indictment based on a violation of the Rule 6(e) secrecy provision does not satisfy the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Midland, 109 S.Ct. at 1498. Under Cohen, an appellate court may review a “collateral order” before final judgment if the" }, { "docid": "3921150", "title": "", "text": "made by the defendant prior to the appearance of a deputy public defender appointed to represent her, finding that all her un-counseled statements “were the product of psychological coercion in violation of her fifth amendment rights to due process of law and to be free from coerced self-incrimination.” The government filed a timely notice of appeal. On March 30, 1987, the defendant filed a clearly untimely notice of appeal from the district court’s December 8, 1986 denial of her motions for dismissal of the indictment due to prosecutorial misconduct before the grand jury, for disqualification of the Strike Force, and for disclosure of grand jury transcripts. Eccles cited as grounds for jurisdiction, despite the untimely notice of appeal, United States v. Benjamin, 812 F.2d 548 (9th Cir.1987), which had been decided on March 11, 1987. On the same day, she filed a notice of cross-appeal, which raised the same issues addressed by her notice of appeal. The notice of cross-appeal also challenged the district court’s denial in part of her motion for suppression. On April 6, 1987, the district court deemed the defendant’s notices of appeal and of cross-appeal to have been filed as of March 30, 1987. 1. Motion to Suppress. The government appeals and the defendant cross-appeals from the order granting in part and denying in part the defendant’s motion to suppress. Before we reach the merits, we must first address the question whether we have appellate jurisdiction over this interlocutory appeal from the district court’s ruling on a motion for suppression. “As a general rule, an order by a district court denying or granting a motion to suppress is not an appealable final order under [28 U.S.C. §] 1291. Such an order is ‘but a step in the criminal case preliminary to a trial thereof,’ and is thus interlocutory.” People of the Territory of Guam v. Mafnas, 721 F.2d 683, 685 (9th Cir.1983) (quoting DiBella v. United States, 369 U.S. 121, 131, 82 S.Ct. 654, 660, 7 L.Ed.2d 614 (1962)). See DeMassa v. Nunez, 747 F.2d 1283, 1286 (9th Cir.1984); In re Search Warrants (Executed on January" }, { "docid": "19362791", "title": "", "text": "residence; (3) the government improperly informed the grand jury that all of the defendants had invoked their right to counsel; (4) the government improperly informed the grand jury that all the defendants had made “relatively high bonds”; (5) the prosecutor improperly acted as a witness before the grand jury; (6) a grand jury witness improperly expressed an opinion; and (7) the government's procedure in presenting the case to the grand jury raised a claim of vindictive indictment. The defendants’ sixth claim does not allege prosecutorial misconduct and hence is not immediately appealable under Dederich. Similarly, their final claim alleging vindictive prosecution, is not subject to interlocutory appeal because the defendant may raise the claim on appeal from final judgment. United States v. Hollywood Motor Car Co., 458 U.S. 263, 264, 102 S.Ct. 3081, 3082, 73 L.Ed.2d 754 (1982) (per curiam); see also Howard, 867 F.2d at 551-52. Defendants’ first five claims allege pros-ecutorial misconduct affecting the grand jury charging process. These claims do not challenge the fundamental fairness of the criminal prosecution. Instead, they merely challenge the procedures by which the grand jury decided to indict defendants. Accordingly, the defendants’ first five claims support valid Dederich appeals. See Dederich, 825 F.2d at 1320; see also Howard, 867 F.2d at 552. Thus, we next consider whether we have jurisdiction over these appeals in light of the Supreme Court decision in Midland Asphalt. B. Effect of Midland on Dederich Appeals In United States v. Benjamin, 812 F.2d 548 (9th Cir.1987), this court held the denial of a motion to dismiss an indictment based on a violation of Fed.R.Crim.P. 6(e)(2), relating to the secrecy of grand jury proceedings, is reviewable before final judgment under the collateral order doctrine. Dede-rich extended the Benjamin analysis to allegations of prosecutorial misconduct affecting the grand jury charging process. Dederich, 825 F.2d at 1320. In Midland Asphalt Corp. v. United States, — U.S. -, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 874 (1989), the Supreme Court expressly rejected the reasoning of Benjamin. United States v. Benjamin, — U.S. -, 109 S.Ct. 1948, 104 L.Ed.2d 418 (1989) (vacating circuit court" }, { "docid": "2506733", "title": "", "text": "a district court’s pre-trial order denying a motion to dismiss an indictment because of grand jury irregularities is not immediately appealable. United States v. Garner, 632 F.2d 758, 765 (9th Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981) . See United States v. Bendis, 681 F.2d 561, 569 (9th Cir.1981), cert. denied, 459 U.S. 973, 103 S.Ct. 306, 74 L.Ed.2d 286 (1982) ; United States v. Linton, 655 F.2d 930, 932 (9th Cir.1980) (per curiam), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 301 (1981). In Garner we stated: We are convinced that, especially in the criminal context, the policy against piecemeal appellate adjudication is sound and that the exceptions to the rule should be few. To allow an interlocutory appeal in this instance would create nothing short of chaos in the criminal justice system. Id. at 766. Today, however, the majority would permit piecemeal appellate adjudication. In its view, United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), will “deprive appellants of any effective review of their claim after final judgment” (Majority Opinion at 551). Because I do not believe Mechanik compels this result, I respectfully dissent. In Mechanik, a federal grand jury returned an indictment charging defendants with drug-related offenses and conspiracy. The indictment was concededly free from any claim of error. The grand jury then returned a superseding indictment in which the conspiracy charge was expanded. In support of the superseding indictment, the United States Attorney presented the testimony of two law enforcement agents who were sworn together and questioned in tandem before the grand jury. The court stated: We assume for the sake of argument ' that the simultaneous presence and testimony of the two Government witnesses before the grand jury violated Rule 6(d), and that the District Court would have been justified in dismissing portions of the indictment on that basis had there been actual prejudice and had the matter been called to its attention before the commencement of trial. Id. at 941. Through no lack of diligence on the part of the" }, { "docid": "19362792", "title": "", "text": "challenge the procedures by which the grand jury decided to indict defendants. Accordingly, the defendants’ first five claims support valid Dederich appeals. See Dederich, 825 F.2d at 1320; see also Howard, 867 F.2d at 552. Thus, we next consider whether we have jurisdiction over these appeals in light of the Supreme Court decision in Midland Asphalt. B. Effect of Midland on Dederich Appeals In United States v. Benjamin, 812 F.2d 548 (9th Cir.1987), this court held the denial of a motion to dismiss an indictment based on a violation of Fed.R.Crim.P. 6(e)(2), relating to the secrecy of grand jury proceedings, is reviewable before final judgment under the collateral order doctrine. Dede-rich extended the Benjamin analysis to allegations of prosecutorial misconduct affecting the grand jury charging process. Dederich, 825 F.2d at 1320. In Midland Asphalt Corp. v. United States, — U.S. -, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 874 (1989), the Supreme Court expressly rejected the reasoning of Benjamin. United States v. Benjamin, — U.S. -, 109 S.Ct. 1948, 104 L.Ed.2d 418 (1989) (vacating circuit court opinion). The Court held that an order denying a motion to dismiss an indictment for an alleged Rule 6(e) violation was not immediately appeal-able under the collateral order doctrine. Id. The Court did not discuss interlocutory appeals based on prosecutorial misconduct. Nevertheless, this court has decided that we lack jurisdiction to entertain an appeal of a district court order denying a motion to dismiss an indictment based on alleged prosecutorial misconduct. United States v. Shah, 878 F.2d 272, 275 (9th Cir.1989). Our analysis of Midland further supports this conclusion. In both Benjamin and Dederich, we noted that under the harmless error rule of Mechanik v. United States, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), a defendant may not challenge the propriety of the grand jury’s charging process once the pet-it jury renders a guilty verdict. Dederich, 825 F.2d at 1320; Benjamin, 812 F.2d at 551-53. In Mechanik, the Supreme Court held that an alleged violation of Fed.R. Crim.P. 6(d) was rendered harmless by a petit jury’s verdict. Mechanik only addressed an alleged" }, { "docid": "3921167", "title": "", "text": "disqualify counsel is not appealable under § 1291 prior to final judgment in the underlying litigation.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 868, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981). Additionally, it has been held that a district court’s order denying a petition for discovery of grand jury proceedings constitutes an interlocutory matter respecting discovery and therefore is not appealable. See State of Illinois v. F.E. Moran, Inc., 740 F.2d 533, 535 (7th Cir.1984); United States v. Carney, 665 F.2d 1064, 1065 (D.C.Cir.) (per curiam), cert. denied, 454 U.S. 1081, 102 S.Ct. 636, 70 L.Ed.2d 615 (1981); In re Grand Jury Proceedings, 580 F.2d 13, 16 (1st Cir.1978); 9 J. Moore, Federal Practice If 110.13[11] at 193 (2d ed. 1987). Because a supervening petit jury verdict would not demonstrate that these alleged errors were harmless, Mechanik and Benjamin have not affected the availability of post-conviction review. See Mechanik, 475 U.S. at 70, 73, 106 S.Ct. at 941, 943; Benjamin, 812 F.2d at 551. Therefore, given the availability of post-conviction review, the defendant could not have brought an interlocutory appeal as to these issues under Benjamin even if appeal had been timely. Mechanik and Benjamin will make unavailable post-conviction review of the defendant’s claim of prosecutorial misconduct before the grand jury unless the prosecuto-rial misconduct that she alleges is so great that it would not constitute harmless error. See Mechanik, 475 U.S. at 69-73, 106 S.Ct. at 941-43; Benjamin, 812 F.2d at 550-54. Thus, the defendant may make a colorable argument that her due process rights have been violated because she has been deprived of her right to appeal the denial of her claim by Benjamin’s expansion of Me-chanik ’s harmless error doctrine. However, the defendant’s due process argument fails because Mechanik and Benjamin eliminate post-conviction review only of harmless errors. See Mechanik, 475 U.S. at 69-72, 106 S.Ct. at 941-43; Benjamin, 812 F.2d at 551-54. By definition, such harmless errors do not affect “substantial rights,” Fed.R.Crim.P. 52(a), and therefore do not implicate the due process clause. Conversely, post-conviction review remains available under Mechanik and Benjamin" }, { "docid": "16094777", "title": "", "text": "of the district court is limited by the final judgment rule of 28 U.S.C. § 1291 (1982): a party must usually “raise all claims of error in a single appeal following final judgment on the merits.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). Defendants attempt to evade this rule by resort to the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). Under Cohen, an order is “collateral” and therefore subject to interlocutory appeal if it conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment. United States v. Almany, 872 F.2d 924, 925 (9th Cir.1989). Defendants rely upon our decisions holding that an order denying a motion to dismiss an indictment under Fed.R.Crim.P. 6(e) constitutes an appealable collateral order. See, e.g., United States v. Benjamin, 812 F.2d 548, 553 (9th Cir.1987), vacated, — U.S. -, 109 S.Ct. 1948, 104 L.Ed.2d 418 (1989) (No. 88-1290). Following submission of the present appeals, however, the Supreme Court rejected those decisions in Midland Asphalt v. United States, — U.S. -, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989). See Almany, at 926 (interpreting Midland Asphalt). The Court reasoned that an order refusing to dismiss an indictment for violation of the grand jury secrecy provisions of Rule 6(e) does not resolve an important issue completely separate from the merits of the underlying action. See Midland Asphalt, 109 S.Ct. at 1498. Rather, such orders involve considerations that are enmeshed in the merits of the dispute, that affect the decision on the merits, or that are affected by that decision. Id. (citations omitted). We conclude that the reasoning of Midland Asphalt forecloses defendants’ attempt to apply the collateral order doctrine to the orders refusing to dismiss the indictment or to compel discovery. The justifications that defendants have advanced for dismissal or for discovery, like the violation of Rule 6(e) at issue in Midland Asphalt, form" }, { "docid": "3921149", "title": "", "text": "GOODWIN, Circuit Judge: Karen Eccles brings an interlocutory appeal from the district court’s denial of her motions for dismissal of her indictment, disqualification of the prosecutor, and disclosure of grand jury transcripts. In addition, the government appeals and Eccles cross-appeals from the district court’s order granting in part and denying in part the defendant’s motion to suppress state- mente she made to government agents and attorneys. On October 4, 1984, the defendant was indicted by a federal grand jury sitting in the Central District of California in a prosecution brought by a Department of Justice “Strike Force.” Eccles was charged with five counts of making false declarations before the district court in violation of 18 U.S.C. § 1623 (1982). The indictment arose from statements that Eccles made during testimony in a suppression hearing in United States v. Simpson, 813 F.2d 1462 (9th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987). These statements were inconsistent with statements that Eccles subsequently made to government agents and attorneys. The court suppressed all statements made by the defendant prior to the appearance of a deputy public defender appointed to represent her, finding that all her un-counseled statements “were the product of psychological coercion in violation of her fifth amendment rights to due process of law and to be free from coerced self-incrimination.” The government filed a timely notice of appeal. On March 30, 1987, the defendant filed a clearly untimely notice of appeal from the district court’s December 8, 1986 denial of her motions for dismissal of the indictment due to prosecutorial misconduct before the grand jury, for disqualification of the Strike Force, and for disclosure of grand jury transcripts. Eccles cited as grounds for jurisdiction, despite the untimely notice of appeal, United States v. Benjamin, 812 F.2d 548 (9th Cir.1987), which had been decided on March 11, 1987. On the same day, she filed a notice of cross-appeal, which raised the same issues addressed by her notice of appeal. The notice of cross-appeal also challenged the district court’s denial in part of her motion for suppression. On April" }, { "docid": "16094776", "title": "", "text": "invocation of the privilege, (3) by failing to caution grand jurors against drawing adverse inferences from invocation of the privilege, and (4) by misadvising some defendants of their status as targets of the grand jury investigation. Defendants next alleged that the government’s use of an informant to contact them after their grand jury appearances violated the sixth amendment right to counsel; breached the ABA Model Code of Professional Responsibility, DR 7-104(A)(l), which prohibits an attorney and his or her agent from directly communicating with an adverse party who has an attorney; and violated the grand jury secrecy rules of Fed.R.Crim.P. 6(e)(2). Finally, defendants alleged the government committed prejudicial misconduct by failing to apprise the grand jury of impeaching evidence against key prosecution witnesses. As an alternative to dismissal of the indictment, defendants sought discovery of the grand jury proceedings, contending that the foregoing allegations established the probable merit of a motion to dismiss and therefore justified discovery under Fed.R.Crim.P. 6(e)(3)(C)(ii). The district court denied defendants’ motions. These appeals followed. II Our jurisdiction to review orders of the district court is limited by the final judgment rule of 28 U.S.C. § 1291 (1982): a party must usually “raise all claims of error in a single appeal following final judgment on the merits.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). Defendants attempt to evade this rule by resort to the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). Under Cohen, an order is “collateral” and therefore subject to interlocutory appeal if it conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment. United States v. Almany, 872 F.2d 924, 925 (9th Cir.1989). Defendants rely upon our decisions holding that an order denying a motion to dismiss an indictment under Fed.R.Crim.P. 6(e) constitutes an appealable collateral order. See, e.g., United States v. Benjamin, 812 F.2d 548, 553 (9th Cir.1987), vacated," } ]

[ { "docid": "12974528", "title": "", "text": "Board, 87 U.S.App. D.C. 331,185 F.2d 426, so here, the procedure the Board followed met the requirement of the Act. We note petitioners’ contention that the Board has gone beyond what it purports to do and has permitted an actual abandonment of service rather than a temporary suspension. Petitioners rely upon the circumstances that under the order American will sell equipment not required during the period of suspension, with the consequence that a later hearing on the application for amendment of the certificate will not be a fair hearing because a situation will have arisen, due to the so-called temporary suspension, which will prevent restoration of the previous position even if the amendment is later shown not to be justified. Further, it is asserted that Ozark, in rearranging its service under the suspension order, will acquire an historical interest in the market between St. Louis and Chicago, thus again prejudicing the fairness of the subsequent hearing on the certificate amendment, and, moreover, that the order makes a number of positive findings of fact which it will not be possible for the Board as a practical matter to disregard. These intangibles do exist but we are not justified because of them in making the choice petitioners insist upon, namely, to hold that the hearing required before the changes become permanent will be futile unless a hearing is held on the temporary changes. We must assume that the Board, subject to judicial review, will decide as it should when, after a hearing, it comes to the taking of permanent action; that is to say, we may not now assume an erroneous final decision because of this temporary decision. Peoples Broadcasting Co. v. United States, 93 U.S.App.D.C. 78, 209 F.2d 286. While we are not unaware as a practical matter of the possible disadvantage to parties incident to tentative interim decisions of public administrators, we cannot remake the statutory procedure because of this. Affirmed. . Petitioners do not contend that a bearing was required by the Due Process Clause of the Fifth Amendment. It is urged, however, that section 5 of the Administrative" } ]

[ { "docid": "8981373", "title": "", "text": "a remand which ordered new comparative hearings. Each, instead, involved a determination of whether the prior comparative hearings had been properly conducted. Consequently, they do not present the problem of whether the prejudice to a comparative hearing under Community Broadcasting dictates the same treatment on this remand as in cases where a frequency is open, with no presently qualified operator. Ill In reviewing the present grants of interim authority, the first factor of importance is the new investment that would be involved in any of the proposed interim operations. Community Broadcasting, Inc. v. FCC, 107 U.S.App.D.C. 95, 274 F.2d 753 (1960). In these proceedings the Commission has been alert to the possible prejudice that might ensue if one applicant were permitted to make a substantial investment on the strength of a grant of temporary authority. The Commission’s order permitting Mid-Florida to continue to operate channel 9 was specifically conditioned upon its not expending any funds pursuant to an agreement already entered to share the new proposed transmission facilities of an applicant for another channel authority. The Commission, in so conditioning the grant, stated that “such an investment [$192,250], during the temporary operation, could prejudice the other applicants in the hearing,” citing Community Broadcasting. The Commission’s opinion reveals that the application of Consolidated Nine predicted $1,393,000 in construction costs and $1,300,000 in estimated first-year expenses. The application estimated only $1,500,000 in first-year revenues. Consolidated Nine, Inc., 7 F.C.C. 801, 803 (1967). Thus the first year of interim operation would involve an estimated $1,200,000 operating deficit. Of course, this deficit would be shared by at least four applicants rather than by only one applicant as in Community Broadcasting. See Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 31, 365 F.2d 962, 964 (1966). The Commission noted that Consolidated Nine was unsuccessful in its attempts to arrange to buy or lease the broadcast facilities of Mid-Florida for an interim operation. Certainly, this would contribute to the cost for Consolidated Nine that the Commission denotes as construction costs. However, there is no record of what difference the inability to lease or purchase the facilities" }, { "docid": "8981374", "title": "", "text": "The Commission, in so conditioning the grant, stated that “such an investment [$192,250], during the temporary operation, could prejudice the other applicants in the hearing,” citing Community Broadcasting. The Commission’s opinion reveals that the application of Consolidated Nine predicted $1,393,000 in construction costs and $1,300,000 in estimated first-year expenses. The application estimated only $1,500,000 in first-year revenues. Consolidated Nine, Inc., 7 F.C.C. 801, 803 (1967). Thus the first year of interim operation would involve an estimated $1,200,000 operating deficit. Of course, this deficit would be shared by at least four applicants rather than by only one applicant as in Community Broadcasting. See Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 31, 365 F.2d 962, 964 (1966). The Commission noted that Consolidated Nine was unsuccessful in its attempts to arrange to buy or lease the broadcast facilities of Mid-Florida for an interim operation. Certainly, this would contribute to the cost for Consolidated Nine that the Commission denotes as construction costs. However, there is no record of what difference the inability to lease or purchase the facilities would make in the total cost to Consolidated Nine; this type of computation is made uncertain by such variables as the terms of sale or rental that might have been agreed upon and how much sooner such arrangements would have permitted Consolidated Nine to come on the air than if it had to construct its own facilities. There is, of course, no obligation on Mid-Florida to make its facilities available to adverse parties seeking interim authority except the inescapable economic realities which could exert some force. On the other hand, however, the refusal of Mid-Florida to either join the Consolidated Nine group or to make its facilities available stands in stark contrast to the Commission’s rule under which both Consolidated Nine’s and Comint’s applications were considered, that requires any interim operation proposal to be open to all applicants. Clearly Mid-Florida’s continuing operation is not open to others, and the inability of Consolidated Nine to secure the facilities for its joint interim operation may well be properly accorded a limited importance in light of the Commission’s" }, { "docid": "22752048", "title": "", "text": "license) and by Greater Boston TV Corp. (I). On December 21, 1963, while this appeal was pending, Mr. Choate died. We remanded again to determine what effect his death would have on the awards. Being aware of the impending comparative hearings on the renewal of WHDH’s temporary license, we authorized the Commission to combine the renewal proceedings with the proceedings, on remand, for reconsideration of the award of the construction permit and the 4-month operating license, both to be conducted on a comparative basis assessing the public interest in the light of the absence of Mr. Choate. Greater Boston Television Corp. v. F.C.C., 118 U.S.App.D.C. 162, 334 F.2d 552 (1964). .B. The Current Comparative Proceeding The consolidated comparative proceeding authorized by this court began in May, 1964, and there was full presentation by WHDH and the other three applicants. 1. Hearing Examiner’s Decision On August 10, 1966, Hearing Examiner Herbert Sharfman issued an exhaustive Initial Decision, in favor of granting the renewal by WHDH. He concluded that the taint of Mr. Choate’s activities had passed with his death, since none of the associates who might have been able to stop him were even aware, so far as the record shows, of the intention of the “imperious” Mr. Choate, and that an extension of disability on the part of WHDH would not be deterrent or prophylactic but only vengeful. In the bulk of his conclusions, related to a comparison of the applicants, the Hearing Examiner took account of the evidence pertaining to the various criteria laid down' in the Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393 (July 28, 1965): — past performance ; diversity of ownership; integration of ownership and management; and program proposals. In determining the weight he felt appropriate under the circumstances of the case, the Examiner placed primary, emphasis on the actual operating record of WHDH under the temporary authorizations of the preceding nine years. The Examiner conceded that the position of WHDH was weak in regard to the integration criterion (participation in station management by owners), and that both BBI and Charles River were proposed" }, { "docid": "8981365", "title": "", "text": "grant to Consolidated Nine, the Commission stated why it favored Mid-Florida over the proposed joint operation by Consolidated Nine as follows: A joint interim operation has serious drawbacks. First, it requires a substantial investment in new facilities. Secondly, it would bring together a new management group consisting mainly of adversary parties. This is an inherently undesirable situation. Joint operation by conflicting parties to a hearing is hardly conducive to satisfactory long-range planning, leaves responsibility in doubt, and does not provide a sound basis for, or incentive to, special efforts to serve the community’s needs. Our experience with joint interim operations indicates that this arrangement may serve to delay the outcome of the comparative hearing, and that it provides poorer management than station operation under the control of one party. An interim authorization is primarily useful when there is no existing service, or an existing licensee has been disqualified. Consolidated Nine, Inc., 7 F.C.C.2d 801, 805 (1967). Comint and Consolidated Nine both appeal. Comint claims that if it is subject to rule 1.592(b) requiring that its interim operation be open to all applicants, then the Commission abused its discretion by not applying the same rule to Mid-Florida. Consolidated Nine urges that it was an abuse of discretion for the Commission to permit one of several competing applicants for permanent authority to operate a channel pending an Ashbacker hearing and that this action was contrary to our holding in Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95; 274 F.2d 753 (1960). II Grants of interim broadcast authority, while not frequent, are not novel matters for review in this court. The requirement of Ashbacker Radio Co. v. FCC, 326 U.S. 327, 66 S.Ct. 148 (1945), that mutually exclusive broadcast applications be accorded comparative hearings created a practical problem of whether there was any way to provide for operation of a station pending the comparative hearing. In Peoples Broadcasting Co. v. United States, 93 U.S.App.D.C. 78, 209 F.2d 286 (1953), this court held that interim grants of authority may be made without necessarily violating the parties’ Ash-backer rights. In Peoples Broadcasting, the Commission permitted" }, { "docid": "8981390", "title": "", "text": "132, 136, 306 F.2d 739, 743 (1962); Sangamon Valley Television Corp. v. United States, 106 U.S.App.D.C. 30, 34, 269 F.2d 221, 225 (1959); Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U.S.App.D.C. 324, 329, 248 F.2d 646, 651 (1957); Greensboro-High Point Airport Authority v. CAB, 97 U.S. App.D.C. 358, 363, 231 F.2d 517, 522 (1956); American Broadcasting Co. v. FCC, 89 U.S.App.D.C. 298, 191 F.2d 492 (1951). . In Braniff Airways, the remand was to permit the Board to enter adequate findings to afford judicial review of a route award; in Sangamon Valley Television, the remand, like that earlier in these proceedings (WORZ, Inc. v. FCC, 106 U.S.App.D.C. 14, 268 F.2d 889 (1959), cert. denied, 361 U.S. 805, 80 S.Ct. 104, 4 D.Ed.2d 56 (1960)) was to determine whether or not there had in fact been any ex parte approaches to a Commissioner which would require the disqualification of any applicant; in Wrather-Alvarez, the remand was to consider the character of the programming of a Mexican station in deciding whether to permit an American network to partially affiliate with it; in the Greensboro-Bighpoint case, the remand was to have the Commission answer the charge of certain localities that the award in question discriminated against them; and in American Broadcasting Go., the remand was for the Commission to make a long-delayed decision on the permanent frequency allocation for a station that was given a temporary allocation when its authorized frequency was removed by treaty from permissible American channels. . In Pike-Mo Broadcasting Co., 2 F.C.C. 207, 209 (1965), aff’d sub nom. Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 365 F.2d 962 (1966), the interim grantee was given a grant which entailed its building facilities anew because the prior operator of the station would not offer satisfactory terms for sale or lease of its facilities. The Commission gave the successful joint interim applicant 30 days to attempt to negotiate more favorable sale or lease terms and to petition for a modification of the facilities granted by the Commission, if it was successful. Id. at 209 n. 4. . Interim operations applications may be" }, { "docid": "23283660", "title": "", "text": "demonstrated a transportation need for the agreements and it would appear that the agreements are not unjustly discriminatory or unfair or detrimental to the commerce of the United States and are not contrary to the public interest. . Neither the findings of the City Council nor the “comments” alluded to in the Commission’s opinion, have been included in the appendix. As appears from the supplementary record lodged in this action, the Commission at the time of decision had on file, in addition to petitioner’s papers two brochures describing the present terminal arrangements in New York City, analysing the present and projected maritime passenger traffic patterns through the port, and outlining the plan and projected cost for the new facilities. These studies, prepared by the Port Authority, do not contain or represent the views of the carriers. The only indication in the record that the carriers favored the terminal project is the assertion by the Port Authority in its answer to petitioner’s protest. If anything, the record suggests a reluctance by the carriers to participate in the new arrangement. If carrier participation is only nominal, there may be some doubt as to how crucial the need is for new facilities, at least on the terms proposed in these two agreements. . See United States Atlantic & Gulf/Australia-New Zealand Conf. v. FMC, 124 U.S.App.D.C. 303, 364 F.2d 696, 699 (1966). . See also Sea Land Serv., Inc. v. Connor, supra note 19. . Compare Northern Nat. Gas v. FPC, 130 U.S.App.D.C. 220, 399 F.2d 953 (1968). . Assuming that “urgency” can be taken into account under § 15, this does not appear to be the kind of “exigent circumstances” that necessitate immediate administrative action. Compare North Ameri-Cold Storage Co. v. Chicago, 211 U.S. 306, 319-320, 29 S.Ct. 101, 53 L.Ed. 195 (1908). In Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95, 274 F.2d 753 (1960) wo recognized the delay attendant on holding evidentiary hearings but refused to permit the FCC to issue temporary broadcast permits, subject to later review in a hearing, except when special circumstances, which the Commission must spell out" }, { "docid": "8981362", "title": "", "text": "376 U.S. 914, 84 S.Ct. 664, 11 L.Ed.2d 611 (1964). The Commission, however, declined to reopen the record and again determined that Mid-Florida was the better qualified of the two applicants. WORZ, Inc., 36 F.C.C. 1535 (1964). On appeal, this court vacated the Commission’s decision and remanded the proceedings to the Commission to reopen the record and permit new applicants for the authority to operate channel 9. We noted both the age of the record— ten years — and the “nagging uncertainty as to whether so vital a community fadlity as is involved here should not be exposed to what may possibly be wider interests than those represented by these two applicants.” WORZ, Inc. v. FCC, 120 U.S.App.D.C. 191, 192, 345 F.2d 85, 86 (1965). The Commission was again authorized to grant “temporary authority for the continued operation of the statl0n' IbuL The Commission then °Pened the Proceedings for new applicatlons for channel 9 and authorized Mid-Florida to continue its operation of the station- The Commission stated that this operation was to be “without prejudice to’ and constitute no preference m aiW resPect of any proceeding to be held with resPect to Channel 9, in Orlando, Florida” WORZ, Inc., 1 F.C.C.2d 1377 (1965). By the new cut-off date the Commission set for applications for channel 9, a total of eight applicants had filed for authority. Four of the new applicants (Central Nine Corporation, TV 9, Inc., Florida Heartland Television, Inc., and Comint Corporation) each applied for authority to operate channel 9 in the interim period before final authorization was determined. Subsequently, three of these applicants dropped their requests for individual interim operating authority and formed Consolidated Nine, Inc. Consolidated Nine was incorporated for the purpose of applying for and if successful, operating, channel 9 in the interim before comparative hearings were held. It was an open-ended group, with provisions that any applicant for permanent author ity could participate with the original incorporators on an equal basis. Four of the six remaining applicants for permanent authority are participants in Consolidated Nine. Comint and Mid-Florida did not join Consolidated Nine. Comint has" }, { "docid": "8981370", "title": "", "text": "also growing out of ex parte approaches to a Commissioner while comparative hearings were pending, the Commission awarded licenses to the only remaining “untainted” applicants, but for a period of only four months, rather than the customary three years. Such a course is an appropriate exercise of the Commission’s discretion. WKAT, Inc. v. FCC, 111 U.S.App.D.C. 253, 261, 296 F.2d 375, 383 (1961), cert. denied, sub nom. Public Service Television, Inc. v. FCC, 368 U.S. 841, 82 S.Ct. 63, 7 L.Ed.2d 40 (1961). In such cases, in the comparative hearing when the licensee applies for a renewal, the experience of the short-term licensee may be considered by the Commission, Community Broadcating Corp. v. FCC, 124 U.S.App.D.C. 230, 363 F.2d 717 (1966), and some credit may be given for its broadcasting performance. South Florida Television Corp. v. FCC, 121 U.S.App.D.C. 293, 349 F.2d 971 (1965), cert. denied, 382 U.S. 987, 86 S.Ct. 541, 15 L.Ed. 2d 475 (1966). But in these cases there was a valid grant to the person in operation of the station. In the present case all prior grants of operating authority to Mid-Florida have been vacated except for the temporary interim grant made after the most recent remand, 1 F.C.C.2d 1377, and the authority to continue that interim operation is here under appeal. Community Broadcasting dealt with an interim grant to one of several applicants for authority to operate a station where there was no present operator of that frequency. This situation can occur either where a new frequency is authorized for an area or where a prior licensee does not seek renewal or is disqualified by the Commission. In such cases, the Commission has applied Community Broadcasting standards by granting interim operating authority to a nonapplicant for the regular license, Oak Knoll Broadcasting Corp., 2 Pike & Fischer R.R.2d 1011 (1964), and by granting interim operating authority to a group of seven of the eleven applicants for regular authority. Pike-Mo Broadcasting Co., 2 F.C.C.2d 207, aff’d sub nom. Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 365 F.2d 962 (1966). In Beloit Broadcasters this court noted" }, { "docid": "8981388", "title": "", "text": "facilities or authorization in question pending the Commission’s decision after hearing. . Act of September 13, 1960, Pub.L. 86-752, § 4(a), 74 Stat. 889. . 47 U.S.C. § 309(e), (f) (1964); Folkways Broadcasting Co. v. FCC, 126 U.S. App.D.C. 123, 379 F.2d 447, 448 n. 1 (1967). Section 309(f) permits a 90-day emergency operation, renewable once, in “extraordinary circumstances requiring emergency operations in the public interest * * * [where] delay, in the institution of such emergency operations would seriously prejudice the public interest * * . In Community Broadcasting the fact that the interim operator was already operating a UIIF frequency in the vicinity was not considered significant. It was necessary to construct new facilities even for an interim operation. In Peoples Broadcasting Co. v. United States, 93 U.S.App.D.C. 78, 209 F.2d 286 (1953), the interim authority was construed as a continuation of existing services when the operator of another VHF frequency was merely authorized to change its frequency when the Commission removed its prior frequency and added a new one to the area in question. In Peoples Broadcasting, the prior operator had received a valid broadcasting license. . In Community Broadcasting Corp. v. FCC, 124 U.S.App.D.C. 230, 363 F.2d 717 (1966), and South Florida Television Corp. v. FCC, 121 U.S.App.D.C. 293, 349 F.2d 971 (1965), cert. denied, 382 U.S. 987, 86 S.Ct. 541, 15 L.Ed.2d 475 (1966), the remand proceedings revealed that of the prior applicants there was only one qualified applicant. In effect, therefore, the four-month licenses were “interim” grants made without full comparative hearings. However, we are aware of no challenge to these grants except as to the credit which the Commission gave for such operations in the later comparative hearings, Community Broadcasting Corp. v. FCC, supra; South Florida Television Corp. v. FCC, supra, and to the propriety of replacing the operator found to be disqualified. WKAT, Inc. v. FCC, 111 U.S.App.D.C. 253, 296 F.2d 375 (1961), cert. denied, sub nom. Public Service Television, Inc. v. FCC, 368 U.S. 841, 82 S.Ct. 63, 7 L.Ed.2d 40 (1961). . See Braniff Airways, Inc. v. CAB, 113 U.S.App.D.C." }, { "docid": "12989235", "title": "", "text": "station in the Miami area.” This last could only have referred to the operation under the four-months license. In its brief, appellant in South Florida pointed this out, and argued that thé Commission had acted unfairly in taking it into consideration. Thus it is that some ambiguity attaches to the court’s statement in South Florida that in none of the categories other than broadcast performance was the licensee “given an unfair advantage by virtue of being a license renewal applicant.” . The Examiner in South Florida limited consideration of performance to the four months period because of what he referred to as “possible intervening rights of private parties.” He thus appeared to conceive of a four months license as enjoying a status of greater substance than a “temporary authorization” but of lesser dignity than a license endowed with the maximum term. The problem remains one of essential fairness as between the competitors. In the case of the “temporary authorization,” the competitors are all alike in the sense that the problem there is to let one of them operate the station pending a determination of which is best qualified. There is an obvious inequity in letting the temporary operator take advantage of his selection on a non-comparative basis to win permanent preferment over the others. See Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95, 274 F.2d 753 (1960). But the four months licensee, as in the case of Sunbeam here, has been through a comparative hearing, has established his own qualifications, and has survived the disqualification of all his competitors. Surely the concept of fairness does not require that he be made to run the gantlet of a wholly new set of competitors before he be given any license at all. And, once given such license albeit under more onerous time limitations than would normally apply, the Commission may exercise its discretion, in a case it thinks proper, to take that operation into account in weighing the licensee’s qualifications as against those of new applicants upon renewal. . Without particularizing appellant’s other contentions, we find nothing of such significance as to" }, { "docid": "19278558", "title": "", "text": "(1982). . Brief for Petitioner at 10-12. . E.g., Eagle-Picher Indus. v. EPA, 245 U.S.App.D.C. 179, 185, 759 F.2d 905, 911 (1985). . Id. . 266 U.S.App.D.C. 165, 169-171, 834 F.2d 191, 195-197 (1987). . Id. at 169-170, 834 F.2d at 195-196. . See id. at 170-171, 834 F.2d at 196-197; Farmers Export Co. v. United States, 244 U.S.App.D.C. 413, 417, 758 F.2d 733, 737 (1985); Professional Drivers Council v. Bureau of Motor Carrier Safety, 227 U.S.App.D.C. 312, 314 n. 2, 706 F.2d 1216, 1218 n. 2 (1983); NRDC v. NRC, 215 U.S.App.D.C. 32, 39-40, 666 F.2d 595, 602-603 (1981); Geller v. FCC, 198 U.S.App.D.C. 31, 34-35, 610 F.2d 973, 977-978 (1979); Functional Music, Inc. v. FCC, 107 U.S.App.D.C. 34, 37, 274 F.2d 543, 546 (1958). . RCA Global Communications, Inc. v. FCC, 244 U.S.App.D.C. 402, 410, 758 F.2d 722, 730 (1985). . Eagle-Picher Indus. v. EPA, supra note 21, 245 U.S.App.D.C. at 185-189, 759 F.2d at 911-915; Baltimore Gas & Elec. Co. v. ICC, 217 U.S.App.D.C. 293, 296-297, 672 F.2d 146, 149-150 (1982). . NLRB Union v. FLRA, supra note 23, 266 U.S.App.D.C. at 169-170, 834 F.2d at 195-196; Geller v. FCC, supra note 25, 198 U.S.App.D.C. at 35, 610 F.2d at 978; Functional Music, Inc. v. FCC, supra note 25, 107 U.S.App.D.C. at 37, 274 F.2d at 546. . 179 U.S.App.D.C. 311, 551 F.2d 1270 (1977). . Id. at 323 n. 13, 551 F.2d at 1282 n. 13 (citations omitted). . See American Trading Transp. Co. v. United States, 253 U.S.App.D.C. 40, 48 n. 11, 791 F.2d 942, 950 n. 11 (1986); MCI Telecommunications Corp. v. FCC, 247 U.S.App.D.C. 32, 35-37, 765 F.2d 1186, 1189-1191 (1985); Montana v. Clark, 242 U.S.App.D.C. 62, 65-66, 749 F.2d 740, 743-744 (1984); National Bank v. Comptroller, 233 U.S.App.D.C. 284, 285-286, 725 F.2d 1390, 1391-1392 (1984). . See MCI Telecommunications Corp. v. FCC, supra note 31, 247 U.S.App.D.C. at 35-36, 765 F.2d at 1189-1190. . Supra note 31. . 247 U.S.App.D.C. at 33-35, 765 F.2d at 1187-1189. . Id. at 35-36, 765 F.2d at 1189-1190. . Id. . Id. at 36, 765 F.2d" }, { "docid": "8981391", "title": "", "text": "affiliate with it; in the Greensboro-Bighpoint case, the remand was to have the Commission answer the charge of certain localities that the award in question discriminated against them; and in American Broadcasting Go., the remand was for the Commission to make a long-delayed decision on the permanent frequency allocation for a station that was given a temporary allocation when its authorized frequency was removed by treaty from permissible American channels. . In Pike-Mo Broadcasting Co., 2 F.C.C. 207, 209 (1965), aff’d sub nom. Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 365 F.2d 962 (1966), the interim grantee was given a grant which entailed its building facilities anew because the prior operator of the station would not offer satisfactory terms for sale or lease of its facilities. The Commission gave the successful joint interim applicant 30 days to attempt to negotiate more favorable sale or lease terms and to petition for a modification of the facilities granted by the Commission, if it was successful. Id. at 209 n. 4. . Interim operations applications may be for single operation by one operator, if they meet one of the conditions set forth in rule 1.592(a), 47 C.F.R. § 1.592(a) (1968), none of which are pertinent here. . One stated reason is inconsistent with the apparent thrust of the “interim” authority. The Commission stated that joint operations by competitors “is hardly conducive to long-range planning.” 7 F.C.C.2d at 805. Although all interim operators have so far been granted the permanent authority or have merged into the group that obtained it, this is definitely not the theory of interim operations. The “interim” is just that and the Commission has made clear that it should not in any way prejudice the eventual choice of regular authority. . Consolidated Nine offered to construct its facilities on a “crash” basis. But this merely points out that there would be a time lag from the grant until the commencement of operations, which themselves were intended to be only for the “interim.” . See Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 365 F.2d 962, 964 (1966)." }, { "docid": "8981372", "title": "", "text": "that “[t]he diffused composition of [the interim operator] minimized the likelihood of significant prejudice to the ultimate disposition of the frequency resulting from an interim grant to it.” Id. at 30-31, 365 F.2d at 963-964. The problems now before us do not fall precisely into either category. While Mid-Florida does not hold a valid license that is presently up for renewal, the frequency is not dormant. Mid-Florida is the current operator albeit without ever having been selected through a valid comparative process. The Commission has analogized the present grant to Mid-Florida to other grants made when a remand has required further proceedings before a licensee is entitled to a regular license. These cases support the Commission’s order immediately after our remand permitting Mid-Florida to continue its operation of channel 9. 1 F.C.C. 2d 1377. The issue on this appeal, however, is whether the Commission properly determined which party could operate channel 9 for the interim period after it had received competing applications for interim authority. None of the cases cited in note 9, supra, involved a remand which ordered new comparative hearings. Each, instead, involved a determination of whether the prior comparative hearings had been properly conducted. Consequently, they do not present the problem of whether the prejudice to a comparative hearing under Community Broadcasting dictates the same treatment on this remand as in cases where a frequency is open, with no presently qualified operator. Ill In reviewing the present grants of interim authority, the first factor of importance is the new investment that would be involved in any of the proposed interim operations. Community Broadcasting, Inc. v. FCC, 107 U.S.App.D.C. 95, 274 F.2d 753 (1960). In these proceedings the Commission has been alert to the possible prejudice that might ensue if one applicant were permitted to make a substantial investment on the strength of a grant of temporary authority. The Commission’s order permitting Mid-Florida to continue to operate channel 9 was specifically conditioned upon its not expending any funds pursuant to an agreement already entered to share the new proposed transmission facilities of an applicant for another channel authority." }, { "docid": "12039309", "title": "", "text": "The record is adequate to sustain the Commission’s finding that decision on the permanent allocation of channel 1380 would not be affected significantly by a continuation of the existing service. The Commission could reasonably believe that maintaining the status quo was less likely to affect this decision than was a change in the operation of 1380 kc which would create new broadcasting services. The Commission was warranted in concluding that interim operation by RTEI was in the public interest. While the Commission did not explicitly state that it would not take interim operation into consideration in deciding the permanent licensee, the inquiry it conducted and the findings it made indicate it is well aware of the duty we have defined on this score and that the grant to RTEI was conditioned on its members receiving no preference on account of their participation in the interim operation. Affirmed. . Mutually exclusive applications were also received for operation in St. Louis on lower power, for an operation on 1390 kc at Louisiana, Mo., 72 miles from St. Louis, and for WBEL to change its nighttime radiation pattern. . Peoples Broadcasting Co. v. United States, 93 U.S.App.D.C. 78, 209 F.2d 286 (1953). . 107 U.S.App.D.C. 95, 274 F.2d 753 (1960). . At time of argument here RTEI was composed of eight of the nine remaining applicants for the St. Louis assignment at 5 hw. . 66 Stat. 718 (1952), 47 U.S.C. 316(a) (1964). . 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374 (1943). . South Beloit is 260 miles from St. Louis. . Capitol Broadcasting Co. v. FCC, 116 U.S.App.D.C. 370, 324 F.2d 402 (1963)." }, { "docid": "8981367", "title": "", "text": "the operator of a prior channel that had been removed from the Lancaster, Pennsylvania area to temporarily operate the new channel allocated to Lancaster pending a comparative hearing on the authority to operate the new channel. In affirming, the court relied upon section 309(c) of the Communications Act of 1934, as it then read. That section provided that the Act’s automatic stay of any grant under protest would not operate when the grant was to continue existing services, which was the case in Peoples Broadcasting. In addition, the temporary authorization was to the only station operating in Lancaster. However, there are inherent difficulties with such interim grants from the standpoint of potential prejudice to a full and fair Ashbacker hearing. In Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95, 274 F.2d 753 (1960), we held that the Commission had acted improperly in granting interim operating authority to one of two competing applicants for a permanent grant. We emphasized that the interim operation there would entail an investment of over $250,-000. The tendency of this circumstance would be to prejudice the other applicant notwithstanding the Commission’s good faith in trying to disregard the potential economic loss if the temporary operator were denied the final grant: “Ordinary human experience tells us that these factors have a force which cannot always be set aside by the triers no matter how sincere their effort or intent.” Id. at 101, 274 F.2d at 759. In addition, Community Broadcasting held that “the spirit of the Ashbacker doctrine requires that to justify the granting of ‘temporary’ authority for so long as 2% to 3 years, the public interest must be clear and it must be made the subject of explicit findings in the particular case in unmistakable terms; * * Ibid. There was no express finding by the Commission in Community Broadcasting on the public interest — public need — for service before a comparative hearing could be completed. Although such explicit findings were found to be required by “the spirit of the Ashbacker doctrine” they were also required by the Communications Act as it read at" }, { "docid": "8981368", "title": "", "text": "would be to prejudice the other applicant notwithstanding the Commission’s good faith in trying to disregard the potential economic loss if the temporary operator were denied the final grant: “Ordinary human experience tells us that these factors have a force which cannot always be set aside by the triers no matter how sincere their effort or intent.” Id. at 101, 274 F.2d at 759. In addition, Community Broadcasting held that “the spirit of the Ashbacker doctrine requires that to justify the granting of ‘temporary’ authority for so long as 2% to 3 years, the public interest must be clear and it must be made the subject of explicit findings in the particular case in unmistakable terms; * * Ibid. There was no express finding by the Commission in Community Broadcasting on the public interest — public need — for service before a comparative hearing could be completed. Although such explicit findings were found to be required by “the spirit of the Ashbacker doctrine” they were also required by the Communications Act as it read at the time of Community Broadcasting That statute has since been amended so that the Commission’s authority to grant interim operating authority is apparently limited to “emergency” situations. While the Commission here relies upon the terms of our remand (see p. 587, supra), and not the Act, for its authority to grant the temporary authority to operate channel 9, the requirements of a fair Ashbacker hearing, as outlined by Community Broadcasting, suggest careful scrutiny by the Commission of any actions that would tend to interfere with impartial comparative hearings. When analyzing grants of temporary or interim authority, it is necessary to distinguish the several situations in which it may occur. When a licensee who has fully qualified and is operating a station makes a timely request for a renewal, the Act provides that the licensee shall continue to operate the station pending any hearings by the Commission. 47 U.S.C. § 307(d) (1964). In the present case, of course, Mid-Florida cannot qualify for such a carry-over because it has never received a valid license. In two cases" }, { "docid": "23283661", "title": "", "text": "the new arrangement. If carrier participation is only nominal, there may be some doubt as to how crucial the need is for new facilities, at least on the terms proposed in these two agreements. . See United States Atlantic & Gulf/Australia-New Zealand Conf. v. FMC, 124 U.S.App.D.C. 303, 364 F.2d 696, 699 (1966). . See also Sea Land Serv., Inc. v. Connor, supra note 19. . Compare Northern Nat. Gas v. FPC, 130 U.S.App.D.C. 220, 399 F.2d 953 (1968). . Assuming that “urgency” can be taken into account under § 15, this does not appear to be the kind of “exigent circumstances” that necessitate immediate administrative action. Compare North Ameri-Cold Storage Co. v. Chicago, 211 U.S. 306, 319-320, 29 S.Ct. 101, 53 L.Ed. 195 (1908). In Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95, 274 F.2d 753 (1960) wo recognized the delay attendant on holding evidentiary hearings but refused to permit the FCC to issue temporary broadcast permits, subject to later review in a hearing, except when special circumstances, which the Commission must spell out with particularity, indicate that the public interest would be served by an immediate grant of a license. . The Commission and Port Authority, as intervenor, rely heavily on our decision in Citizens for Allegan County v. FPC, supra note 21 as authority for the Commission's summary disposition. Allegan involved the sale of power facilities owned and operated by the county to a public utility which would interconnect the Alle-gan facilities with a regional power system. The terms of the divestiture were approved by county referendum. We held that in light of citizen approval and in the absence of blatant irregularity, the Commission could proceed without making an independent inquiry as to whether the sale and the terms of the sale were in the public interest, at least from the point of view of the county. These, we reasoned, were essentially matters of local concern and the Commission could properly defer to voter choice. The Port Authority argues that the proposed agreements and the plans for the new terminal were considered and favorably received at a" }, { "docid": "12989236", "title": "", "text": "of them operate the station pending a determination of which is best qualified. There is an obvious inequity in letting the temporary operator take advantage of his selection on a non-comparative basis to win permanent preferment over the others. See Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95, 274 F.2d 753 (1960). But the four months licensee, as in the case of Sunbeam here, has been through a comparative hearing, has established his own qualifications, and has survived the disqualification of all his competitors. Surely the concept of fairness does not require that he be made to run the gantlet of a wholly new set of competitors before he be given any license at all. And, once given such license albeit under more onerous time limitations than would normally apply, the Commission may exercise its discretion, in a case it thinks proper, to take that operation into account in weighing the licensee’s qualifications as against those of new applicants upon renewal. . Without particularizing appellant’s other contentions, we find nothing of such significance as to require further treatment. Cf. Note 1, supra." }, { "docid": "8981369", "title": "", "text": "the time of Community Broadcasting That statute has since been amended so that the Commission’s authority to grant interim operating authority is apparently limited to “emergency” situations. While the Commission here relies upon the terms of our remand (see p. 587, supra), and not the Act, for its authority to grant the temporary authority to operate channel 9, the requirements of a fair Ashbacker hearing, as outlined by Community Broadcasting, suggest careful scrutiny by the Commission of any actions that would tend to interfere with impartial comparative hearings. When analyzing grants of temporary or interim authority, it is necessary to distinguish the several situations in which it may occur. When a licensee who has fully qualified and is operating a station makes a timely request for a renewal, the Act provides that the licensee shall continue to operate the station pending any hearings by the Commission. 47 U.S.C. § 307(d) (1964). In the present case, of course, Mid-Florida cannot qualify for such a carry-over because it has never received a valid license. In two cases also growing out of ex parte approaches to a Commissioner while comparative hearings were pending, the Commission awarded licenses to the only remaining “untainted” applicants, but for a period of only four months, rather than the customary three years. Such a course is an appropriate exercise of the Commission’s discretion. WKAT, Inc. v. FCC, 111 U.S.App.D.C. 253, 261, 296 F.2d 375, 383 (1961), cert. denied, sub nom. Public Service Television, Inc. v. FCC, 368 U.S. 841, 82 S.Ct. 63, 7 L.Ed.2d 40 (1961). In such cases, in the comparative hearing when the licensee applies for a renewal, the experience of the short-term licensee may be considered by the Commission, Community Broadcating Corp. v. FCC, 124 U.S.App.D.C. 230, 363 F.2d 717 (1966), and some credit may be given for its broadcasting performance. South Florida Television Corp. v. FCC, 121 U.S.App.D.C. 293, 349 F.2d 971 (1965), cert. denied, 382 U.S. 987, 86 S.Ct. 541, 15 L.Ed. 2d 475 (1966). But in these cases there was a valid grant to the person in operation of the station. In" }, { "docid": "8981366", "title": "", "text": "interim operation be open to all applicants, then the Commission abused its discretion by not applying the same rule to Mid-Florida. Consolidated Nine urges that it was an abuse of discretion for the Commission to permit one of several competing applicants for permanent authority to operate a channel pending an Ashbacker hearing and that this action was contrary to our holding in Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95; 274 F.2d 753 (1960). II Grants of interim broadcast authority, while not frequent, are not novel matters for review in this court. The requirement of Ashbacker Radio Co. v. FCC, 326 U.S. 327, 66 S.Ct. 148 (1945), that mutually exclusive broadcast applications be accorded comparative hearings created a practical problem of whether there was any way to provide for operation of a station pending the comparative hearing. In Peoples Broadcasting Co. v. United States, 93 U.S.App.D.C. 78, 209 F.2d 286 (1953), this court held that interim grants of authority may be made without necessarily violating the parties’ Ash-backer rights. In Peoples Broadcasting, the Commission permitted the operator of a prior channel that had been removed from the Lancaster, Pennsylvania area to temporarily operate the new channel allocated to Lancaster pending a comparative hearing on the authority to operate the new channel. In affirming, the court relied upon section 309(c) of the Communications Act of 1934, as it then read. That section provided that the Act’s automatic stay of any grant under protest would not operate when the grant was to continue existing services, which was the case in Peoples Broadcasting. In addition, the temporary authorization was to the only station operating in Lancaster. However, there are inherent difficulties with such interim grants from the standpoint of potential prejudice to a full and fair Ashbacker hearing. In Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95, 274 F.2d 753 (1960), we held that the Commission had acted improperly in granting interim operating authority to one of two competing applicants for a permanent grant. We emphasized that the interim operation there would entail an investment of over $250,-000. The tendency of this circumstance" } ]

[ { "docid": "23192472", "title": "", "text": "Liability.” Despite certain procedural irregularities, it is clear that this petition sought limitation of liability by the separate proceeding at the suit of the owners as authorized by § 185 of the statute. (2) Subsequently, more than six months after the libel was filed, the owners filed an answer to the libel in which they, inter alia, referred to their petition previously filed, re-averred most of the statements alleged therein, and asked for a decree of limitation of liability. At the same time they filed a motion asking that their answer be filed nunc pro tunc as of the date of the petition. This the court granted. In an opinion filed July 10, 1942, 54 F.Supp. 19, the court held that the prayers of the petition could not be granted since there had been a failure to deposit the res, a bond, or a fund, or transfer to a trustee, with the court. However, it was held that the claim for limitation of liability had been properly raised in the answer. In its decree the court granted one partner, Wagner, individually, limitation of liability but denied limitation to Lyons, the other partner, and the partnership. A decree was entered accordingly, 54 F.Supp. 21 and all the parties complain. The owners contend that the libelant’s suit was, as to them, in rem, not in personam and that consequently neither they nor the partnership could incur a personal judgment. American’s answer to this is that upon submission of the petition for limitation of liability the jurisdiction of the court attached both in rem and in personam and it cites Hartford Accident & Indemnity Company v. Southern Pacific Company, 1927, 273 U.S. 207, 47 S.Ct. 357, 71 L.Ed. 612. The rebuttal is that the petition was a nullity. It is clear that the libelant’s suit was in rem only, in so far as the “Chickie” and her owners were concerned. However, it is equally clear that a ship owner may invoke the statute either by petition in a separate proceeding or by answer, although the libelant’s action is solely in rem. The City" } ]

[ { "docid": "1289418", "title": "", "text": "The decree against the claimant of the tugs must also be reversed because the court had no personal jurisdiction over him. The libel is in rem against the two tugs and the Alston. The libellant’s allegation that it “desires also to seek relief in personam\" is effective as against the United States. It does not convert the libel against the tugs into an in personam suit against their claimant. On what theory the contract between the United States and Dalzell Towing Company, not a party to the suit, was received in evidence is not apparent. The Towing Company used the tugs in performing its contract but no evidence was offered to show what arrangements the Towing Company had made with their claimant, or that his relation to it was such that he was subject to the same contractual obligations as the Towing Company. Nor does it appear that Captain Finley was an employee of the claimant; hence his negligence cannot be imputed to the claimant. He entered the action only to claim the tugs and to answer the libel in order to protect his interest in them. This does not give the court personal jurisdiction over him. The ordinary practice in admiralty does not permit a personal judgment to be entered upon a mere libel in rem. In certain cases amendments which added an in personam cause against a claimant to an in rem proceeding against the vessel have been permitted. Thus in The Minnetonka, 2 Cir., 146 F. 509, when the libellant by mistake underestimated the amount of her loss this court allowed amendment to permit recovery against the claimant for the amount of her loss over the value of the bond. In The Monte A., D.C.S.D.N.Y., 12 F. 331, an action in rem against a vessel for breach of a wholly executory charter party contract, the owner appeared and defended on the merits. The libel was dismissed, but without prejudice to an application by libellant within ten days to amend the libel by praying judgment against the owner, and after due service upon him or his voluntary appearance," }, { "docid": "22311254", "title": "", "text": "From this order Cia. has appealed. The order has been stayed pending appeal. Judge Noonan’s opinion is reported in D.C., 144 F.Supp. 839. The appeal raises several interesting questions concerning the United States Arbitration Act, 9 U.S.C.A. § 1 et seq. But before these can be considered, it must be determined whether the order .is appealable. The appellee contends it is not. The facts are undisputed. In addition to those above recited it should be stated that in May 1954 Farr & Co. filed a libel against the S.S. Punta Alice, her owner, referred to as Ravena, and Cia., to whom Ravena had chartered the vessel and by whom she had been subchartered to the libelant in June 1953. The libel claimed damage to various shipments of sugar carried on the vessel from Santiago de Cuba to Montevideo, Uruguay — the same claim of which the libelant later demanded arbitration. No jurisdiction in rem was acquired over the vessel and no jurisdiction over the person of either respondent was obtained by appearance or service of a citation, and no property of either was ever attached. On February 9, 1956, twenty-one months after filing its libel, Farr & Co. filed its petition for arbitration. The appellee contends that the order is interlocutory and not appealable. In two cases involving orders, pursuant to 9 U.S. c.A. § 4, to proceed to arbitration, this court has held such an order a final judg-nient and as such appealable. The matter was first considered in Krauss Bros, Lumber Co. v. Louis Bossert & Sons, 2 Cir., 62 F.2d 1004, 1005, where Judge L. Hand said that the order is the “last deliberative action of the court.” This was followed in In re Canadian Gulf Line, 2 cir., 98 F.2d 711, 713. In The Sydfold, D.C.S.D.N.Y., 25 F.Supp. 662, Judge Patterson also considered an order directing arbitration to be a final order. In two other cases we have assumed appealability without discussion. In re Utility Oil Corporation, 2 Cir., 69 F.2d 524, certio-rari denied Petroleum Nav. Co. v. Utility Oil Corp., 292 U.S. 655, 54 S.Ct." }, { "docid": "17226367", "title": "", "text": "substantial quantity of coal, through the opening and was suffocated before he could be dug out. His widow filed a libel in rem against the ship, and in personam against the owner, Rederi A/B Dalen, based on the Virginia wrongful death statute, Code of Va. § 8-633 (1950). The libel charged that the longshoreman’s death resulted from the unseaworthiness of the vessel and the negligence of her officers. The shipowner, in turn, impleaded stevedore Maher as third party defendant, alleging that liability, if any, was due to Maher’s failure to perform the loading operation in a workmanlike manner and claiming recovery over against him. The case was fully tried by the court on May 11, 1960, and after several unavoidable delays was set for final argument on March 1, 1961. Final argument was never held, for on February 28, 1961, stevedore Maher paid the libellant the sum of $25,000 and costs, in full settlement. The following day, this agreement was ratified by the court and an order entered dismissing the original libel with prejudice. Controversy, however, continued between the shipowner and the stevedore. The former contended that, although its liability had not been adjudicated in the main action, it was entitled to recover the attorney’s fees it had expended in defending the libel. This phase of the case ended on September 18, 1961, with the entry by the District Court of an order denying the shipowner’s claim and dismissing the third party action. The appeal is from that order. It is now well settled that the stevedore is obligated to indemnify the shipowner for any loss occurring as a result of the failure of the former to stow or discharge cargo in a workmanlike manner. See, e. g., Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956); Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958); Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959); Waterman S.S. Co. v. Dugan & McNamara, Inc., 364 U.S. 421, 81" }, { "docid": "14543365", "title": "", "text": "198 F.2d 369, 374, Judge Clark suggests that the majority opinion in that case runs counter to The West Eldara. As we read that decision we think it does not; that it is not apposite here. In fact, the majority opinion does not even mention The West Eldara, which, in view of the dissent, it could not have overlooked. The decision in the Logue Stevedoring case turned on a procedural point which prevented a judgment against the tug owners or operators. The libel was in rem against the tug and the vessel being moved. Libellant was owner of two derricks which were damaged when struck by the vessel, The Alston, during an un-docking operation. The captain of one of the tugs was on the vessel as undock-ing pilot. Dalzell Towing Company was not a party to the suit. Lloyd II. Dalzell was claimant of the tugs. The court held this did not give the court jurisdiction over him. It did not appear that the captain acting as pilot was Dalzell’s employee, nor what relation Dalzell had to the Towing Company, or who wore operators of the tugs. Hence the court held judgment against Dalzell could not stand. . “From its early history this Court has consistently held that an agent is liable for all damages caused by liis negligence,, unless exonerated therefrom, in whole or in part, by a statute or a valid contract binding on the person damaged.” In Publicker Industries v. Tugboat Neptune Co., 3 Cir., 171 F.2d 48, the pilotage clause relied on by the tugboat company to exonerate it was not binding on the plaintiff who was not a party to it. Hence the tugboat company was held liable. In the court below appellant relied strongly upon A. M. Collins & Co. v. Panama R. Co., 5 Cir., 197 F.2d 893, 897, and a statement in the Restatement on Agency that “An agent who is acting in pursuance of his authority has such immunities of the principal as are not personal to tbe principal.” In Herd the Court rejected the application of any such rule, and" }, { "docid": "6175450", "title": "", "text": "bond contains a provision that the court has “fixed the amount of said bond or stipulation at $25,000 without prejudice, however, to the claims and rights of either of the parties as to the merits of the case and as to the value, if any, of the claims and suit of the libellants.” However, counsel for claimant have objected to the entry by this Court of any decree in excess of the amount of the bond given, namely, $25,000. That is to say, counsel for claimant contend that even though this Court has found a greater sum to be due libellants, its decree, nevertheless, cannot exceed the amount of the bond originally given. In support of this contention it is asserted on behalf of the claimant that (1) where a libel in rem only, as in the present case, is filed and the vessel owner answers and defends, this does not give the Court ground for rendering a 'personal judgment against the owner and he, therefore, is not liable for damages in excess of the amount of the bond; and (2) a vessel, once seized and released under a stipulation, cannot again be seized by the same libellant, for the same cause of action, in an action'in rem. In support of these propositions counsel for the claimant cite The Virgin, 8 Pet. 538, 33 U.S. 538, 8 L.Ed. 1036; The Susanna, 4 Cir., 2 F.2d 410; J. K. Welding Co. v. Gotham Marine Corp., D.C., 47 F.2d 332; Moore v. Kimball, 5 Cir., 66 F. 340. It is elementary, and long established by the weight of authority in this country, that a bail bond, given to secure the release of a vessel in an in rem proceeding, stands in place of the vessel. Thus, the liens asserted against the vessel are discharged and cannot be revived in such proceeding, and there can be no re-arrest for the same claim, unless the release of the vessel on bond has been secured by misrepresentation or fraud. However, we find nothing in the decisions which prohibits this Court, under the particular facts of" }, { "docid": "14676107", "title": "", "text": "answer all and singular the matter's propounded, and that this court will pronounce for the damage alleged and for such other relief to the libelant as shall to law and justice appertain, and also to condemn said steamship, etc., to be sold to pay the same. No monition was issued on this prayer, and no advertisement was had. The marshal made no personal service, but attached the vessel and its equipment. The owners who were cited to appear in the process filed their claim to the ship, and gave bond for her release. The claimants and owners except to the libel, because the allegations do not disclose any admiralty and maritime lien and claim upon the said vessel whereupon the judgment prayed for should be founded, and therefore this court has no power to entertain said libel in rem, because no monition has been caused to be published by the libel-ant, and other grounds of exception. Proctors for libelant, in their brief, “admit the soundness of the first point,” and concede that they have no remedy in rem. They contend, however, that the prayer of the libel makes the libel a joint proceeding in rem and in personam, and that they can dismiss as to the in rem feature and maintain the action in personam. They offer an amendment to the libel, which in effect converts' the proceeding into an action in personam. They further contend that monition is unnecessary .when the respondent gives bond and files a claim to the property; that by giving bond the defendants admit the jurisdiction of the court and waive service. The question for decision arises on the allowance of the amendment offered. As already stated, proctors for libelant admit that she has no right to proceed in rem for the death of her husband. They state in their written brief, “our contention is that our prayer in the libel made the libel a joint proceeding in rem and in personam, and that we can dismiss as to the in rem feature and maintain the action in personam.” They continue, “The amendment which we" }, { "docid": "7812467", "title": "", "text": "filed in this court a petition for an order directing the trial court to permit the filing of an amended and supplemental libel and to issue and serve process in personam upon appellees. It is claimed that this procedure is authorized by The Monte A., D.C., 12 F. 331. We deem it unnecessary to rule upon this petition for we think that under all of the circumstances of this case and in order to.achieve substantial justice the trial court has power to enter a personal decree against appellees without any additional service of process or supplemental libel. As we have shown, the court below erred in ordering the release of the vessel without requiring a sufficient bond from appellees. In The Fairisle, D.C., 76 F.Supp. 27, 34, the court, in an in rem proceeding, had fixed the amount of the bond at $25,000 and released the vessel. This amount proved to be too low, for, upon trial, a total of $45,100 was awarded libelants. The court held that since the owners had appeared to contest their liability, “they may equitably be treated as if they had been brought into the court by personal process”, and entered a decree for the recovery of the full award. In The Minnetonka, 2 Cir., 146 F. 509, a $5,000 bond was posted but a recovery of $7,000 was awarded. The second circuit affirmed the decree, stating, 146 F. at page 515: “The Atlantic Transport Company appeared in the action as claimant, and it was within the power of the court to direct a decree against it for the balance of the libelant’s loss. A court of admiralty has powers akin to those of a court of equity, and should not be hampered in its efforts to reach a substantial justice by the inexorable rules invoked by the claimant.” Appellees cite cases holding that an action in rem cannot be converted to an action in personam. Most of those cases were decided prior to the amendment of Admiralty Rule 13 when actions in rem could not be joined with actions in person-am, The Ethel, 5" }, { "docid": "23213187", "title": "", "text": "Siemens Medical Sys., 879 F.2d 1005, 1011 (2d Cir.1989). I. Jurisdiction Empresa initially contends that in the prior action the district court possessed jurisdiction only to the extent of the value of the res or the amount of any bond substituted therefor, and thus lacked jurisdiction to enter a judgment in excess of the value of the $3 million letter of undertaking. Indeed, Empresa points to the rule that “an in rem action is an action against the arrested res itself and any judgment is thus limited to the value thereof or the value of the bond or stipulation substituted for the res to obtain its release.” 7A James Wm. Moore, Moore’s Federal Practice ¶ E.16[2] at E-779 (2d ed. 1995) (footnote omitted; emphasis added). While this rule generally governs in rem actions, it is axiomatic that a district court sitting in admiralty exercises “powers akin to those of a court of equity.” The MINNETONKA, 146 F. 509, 515 (2d Cir.), cert. denied, 203 U.S. 589, 27 S.Ct. 777, 51 L.Ed. 330 (1906). By virtue of those powers, a court possesses jurisdiction to enter judgment in excess of the value of an arrested res. Indeed, as we explained in MINNE-TONKA, “[a] court of admiralty ... should not be hampered in its efforts to reach ... substantial justice.” Id.; see also Mosher v. Tate, 182 F.2d 475, 479 (9th Cir.1950) (“[W]e think that under all of the circumstances of this case and in order to achieve substantial justice the trial court has power to enter a personal decree against appellees without any additional service of process or supplemental libel.”); The FAIRISLE, 76 F.Supp. 27, 32 (D.Md.1947) (holding “no principle of admiralty law ... prohibits this Court from rendering a decree against claimant for the total amount of the award,” even where award exceeds amount of bond posted as security), aff'd sub nom. Waterman S.S. Corp. v. Dean, 171 F.2d 408 (4th Cir.1948); see generally 7A Moore’s Federal Practice ¶ E.16[2] at E-780 (“[I]n some instances the owner or claimant who procures the release of the res or who enters a restricted" }, { "docid": "23223645", "title": "", "text": "Mr. Justice Brennan delivered the opinion of the Court. The respondent, Carbon Black Export, Inc., a Delaware corporation, brought a libel in admiralty in the District Court for the Southern District of Texas for damage sustained to a shipment of carbon black during an ocean voyage from Houston and New Orleans to various Italian ports. The libel was one in rem against the vessel in question, the S. S. Monrosa, then in the port of Houston on another voyage, and in personam against the Monrosa’s-owner, Navigazione Alta Italia, an Italian corporation. The latter filed an appearance in response to the libel in personam, and, as owner of the vessel, filed a claim to it, and prayed to defend the libel in rem. In respect to the libel in rem, a stipulation to abide the decree, in the penal sum of $100,000, was filed by the claimant and the National Surety Company, its surety, and approved by the present respondeat. . Navigazione Alta Italia then moved that the District Court decline'jurisdiction over the cause, on the grounds that the parties had agreed, by a provision in the bills of lading covering the shipment, that controversies in regard to cargo damage shoúld be settled only in the courts of Genoa, Italy. The District Court granted the motion, subject to the filing of a bond by Navigazione Alta Italia in the sum of $100,000 to respond to whatever judgment might finally be rendered on the cause of action in question. The Court of Appeals for the Fifth Circuit reversed. It found the provision in the bill of lading in terms inapplicable to suits in rem,- and it declined to enforce its terms to require a dismissal of the libel in personam. 254 F. 2d 297. 'We granted certiorari, 358 U. S. 809, because of an indicated conflict in principle between the Fifth Circuit’s views as to enforceability of such provisions and those taken by the Second Circuit, primarily in William H. Muller & Co. v. Swedish American Line Ltd., 224 F. 2d 806. We do not believe that this case affords us an" }, { "docid": "6175449", "title": "", "text": "it determine the amount of the bond or stipulation to be filed in order to release The Fairisle from arrest. The attorneys for libellants urged that the amount of the bond be not less than $1,000,000, stating that they expected to be able to prove that the total amount of the awards allowable to the various libellants would be as much as that amount. On the other hand, counsel for the vessel argued that a bond for any such amount was totally unnecessary and excessive. On behalf of the vessel it was claimed that any reasonable allowance to all of the libellants combined could not exceed $10,900. After hearing the contentions made on behalf of the respective parties, the Court concluded that libellants’ figures were absurdly excessive, and ruled that a bond or stipulation in the amount of $25,000 was adequate under the circumstances as they appeared to the Court, in advance of a trial on the merits. Accordingly, a bond was given for the release of The Fairisle in the sum of $25,-000. This bond contains a provision that the court has “fixed the amount of said bond or stipulation at $25,000 without prejudice, however, to the claims and rights of either of the parties as to the merits of the case and as to the value, if any, of the claims and suit of the libellants.” However, counsel for claimant have objected to the entry by this Court of any decree in excess of the amount of the bond given, namely, $25,000. That is to say, counsel for claimant contend that even though this Court has found a greater sum to be due libellants, its decree, nevertheless, cannot exceed the amount of the bond originally given. In support of this contention it is asserted on behalf of the claimant that (1) where a libel in rem only, as in the present case, is filed and the vessel owner answers and defends, this does not give the Court ground for rendering a 'personal judgment against the owner and he, therefore, is not liable for damages in excess of the" }, { "docid": "9596720", "title": "", "text": "all persons interested in said vessel may be cited to appear and answer, and that said vessel may be condemned and sold to pay libelant’s claim. It cannot be claimed that this court, under the decision of The Corsair, supra, had any jurisdiction in an action in rem'in this case, and the question presented is, Can such libel be amended as to give the court jurisdiction over the owners of said, vessel so that a'valid decree could be entered against them in personam. This matter has been frequently before the courts, and has been in every instance determined in the negative. No action at present is in existence within the jurisdiction of the court against the owners of this vessel. They have not been summoned by publication or service of process of any kind. They have not appeared by a representative in their personal capacity, but simply by one on account of their connection with the res. In the case of The Ethel, 66 Fed. 340, 13 C. C. A. 504, it was held that, where there is no prayer, process, or personal judgment in the libel and no process and service upon the owner, the fact that he appears and answers the libel in' rem does not give the court jurisdiction to render a personal judgment against him. To the same effect is the decision in the case of The Monte A. (D. C.) 12 Fed. 334, and the case of The Lowlands (D. C.) 147 Fed. 986. Two cases have been cited and relied, upon by the libelants in asking to amend, which I have carefully examined. In The Virgin, 8 Pet. 538, 8 L. Ed. 1036, the Circuit Court entered a decree against the owners as in an action in personam, .when the action was in rem. The Supreme Court reversed the decree, and, in passing upon that point, says,. “The view which has been taken of the present case renders it wholly unnecessary to consider whether a decree in personam could be made by the Circuit Court upon a libel and proceeding in remand, although the" }, { "docid": "1289419", "title": "", "text": "to answer the libel in order to protect his interest in them. This does not give the court personal jurisdiction over him. The ordinary practice in admiralty does not permit a personal judgment to be entered upon a mere libel in rem. In certain cases amendments which added an in personam cause against a claimant to an in rem proceeding against the vessel have been permitted. Thus in The Minnetonka, 2 Cir., 146 F. 509, when the libellant by mistake underestimated the amount of her loss this court allowed amendment to permit recovery against the claimant for the amount of her loss over the value of the bond. In The Monte A., D.C.S.D.N.Y., 12 F. 331, an action in rem against a vessel for breach of a wholly executory charter party contract, the owner appeared and defended on the merits. The libel was dismissed, but without prejudice to an application by libellant within ten days to amend the libel by praying judgment against the owner, and after due service upon him or his voluntary appearance, the cause was to be heard on the proofs which had already been presented, and any additional proofs necessary. See also The Susquehanna, 2 Cir., 267 F. 811. In these cases the court noted that the amendment involved “the introduction of no new facts or change in the cause of action.”, or as Judge Brown said in The Monte A., “The pleadings in this case contain all the requisite allegations for the full hearing and determination upon the merits of the owner’s liability as in a suit in per-sonam. The only thing wanting is a prayer in the libel for a monition and personal judgment against him. An amendment to this effect is no change in the substantial cause of action, but only in the relief demanded.” Such is not the case here. The libellant neither needs nor seeks an amendment of its libel; the in rem liability of the Alston is adequate to satisfy the libellant’s claim for damage to its derricks without re gard to the personal liability of the claimant. The answer" }, { "docid": "14543364", "title": "", "text": "S.Ct. 654. We hold that acceptance of the clause by Victory Carriers would have had the effect of relieving Red Stack of half the damages. Appellant’s argument that Red Stack would still be liable for all the damages because of its own separate negligence seems to be based upon an attempted application of the case of the Chattahoochee, 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801. That case is not relevant here. It dealt with the damages recoverable by the innocent owners of cargo lost in a mutual fault collision. A ship owner bound by this pilotage clause, where the pilot was at fault, would hardly be in the position of the cargo owners in that case, who were completely without either fault or control of any kind. The judgment of the district court is affirmed. . The master of the tug, Sea Scout, was on board the Emery, serving as pilot. The first mate was operator of the tug. . In his dissenting opinion in Logue Stevedoring Corp. v. The Dalzellance, 2 Cir., 198 F.2d 369, 374, Judge Clark suggests that the majority opinion in that case runs counter to The West Eldara. As we read that decision we think it does not; that it is not apposite here. In fact, the majority opinion does not even mention The West Eldara, which, in view of the dissent, it could not have overlooked. The decision in the Logue Stevedoring case turned on a procedural point which prevented a judgment against the tug owners or operators. The libel was in rem against the tug and the vessel being moved. Libellant was owner of two derricks which were damaged when struck by the vessel, The Alston, during an un-docking operation. The captain of one of the tugs was on the vessel as undock-ing pilot. Dalzell Towing Company was not a party to the suit. Lloyd II. Dalzell was claimant of the tugs. The court held this did not give the court jurisdiction over him. It did not appear that the captain acting as pilot was Dalzell’s employee, nor what relation Dalzell" }, { "docid": "23213188", "title": "", "text": "of those powers, a court possesses jurisdiction to enter judgment in excess of the value of an arrested res. Indeed, as we explained in MINNE-TONKA, “[a] court of admiralty ... should not be hampered in its efforts to reach ... substantial justice.” Id.; see also Mosher v. Tate, 182 F.2d 475, 479 (9th Cir.1950) (“[W]e think that under all of the circumstances of this case and in order to achieve substantial justice the trial court has power to enter a personal decree against appellees without any additional service of process or supplemental libel.”); The FAIRISLE, 76 F.Supp. 27, 32 (D.Md.1947) (holding “no principle of admiralty law ... prohibits this Court from rendering a decree against claimant for the total amount of the award,” even where award exceeds amount of bond posted as security), aff'd sub nom. Waterman S.S. Corp. v. Dean, 171 F.2d 408 (4th Cir.1948); see generally 7A Moore’s Federal Practice ¶ E.16[2] at E-780 (“[I]n some instances the owner or claimant who procures the release of the res or who enters a restricted appearance to defend the res may be held personally accountable for damages in excess of the value of the arrested res or the substitute bond or stipulation provided to obtain its release.”). We find, under the circumstances of this case, that the district court properly exercised its authority as an admiralty court to enter a judgment in excess of the value of the letter of undertaking. In essence, Empresa’s argument rests on a confusion between damages and liability. The district court’s decision in LUNAMAR II determined that the damage to Central Hudson’s cable pipeline was caused by the Vessel, and calculated the value of this damage at $4,477,584.15. This factual finding became final when we affirmed that judgment. See In re PCH Assocs., 949 F.2d 585, 593 (2d Cir.1991) (where district court determined issue in earlier case and where appellate court did not disapprove, it was law of the case). Thus, the amount of Central Hudson’s damages is not at issue here. The question, rather, is whether Central Hudson can collect on the unrecovered portion" }, { "docid": "9596722", "title": "", "text": "aniount decreed to the libelant was very much larger than the-value of the vessel which had been taken by one of the claimants at a stipulated price, confined its decree to the amount thus determined, and fully .exonerated the owners from all amounts beyond the actual proceeds of the vessel. Clearly and distinctly overruling the opinion of the Circuit Court in permitting judgment to be given against the owners in an action in rem. In Chamberlain v. Ward, 21 How. 548, 16 L. Ed. 211, the Supreme Court say: “This was a suit in perspnam. It was commenced by the owners of the steamer Atlantic against the owners of the propeller Odenstrary and grew out of a collision.” It is further explained in that opinion that originally a libel was. filed against the propeller in rem and a process of attachment taken out, and in personam against the owners and summoning them as respondents. Upon exceptions taken to the form of the libel alleging an improper joinder of the vessel and owners, the case was continued as an action in personam, and the action in rem abandoned. In that original libel the court had jurisdiction under the fifteenth admiralty-rule equally whether the action was in rem or in personam, but they could not be presented jointly. The libelants were, therefore, given a privilege of election. In this case the court has no jurisdiction in an action in rem, and the amendment of the libel would simply be for the purpose of giving the court jurisdiction in an action in personam in a case in which it has no jurisdiction as the matter stands. No proper process has been is.sued, nor summons served, or attachment had as in an action in personam. The attachment had has been in an action against the vessel itself, and not as the property of her owners. • - Notwithstanding the apparent injustice which may result from the denial of the motion to amend, I am fully satisfied that \"no jurisdiction could be acquired over the owners of this vessel, or any valid decree entered by" }, { "docid": "8486472", "title": "", "text": "may recover both in personam against the owner and in rem for personal injuries caused by that type of “operational” negligence aboard ship which does not render the ship unseaworthy. Pope & Talbot, Inc., v. Hawn, supra (in personam); Lahde v. Soc. Armandora Del Norte, supra (in rem, dictum includes in personam); Johnson Line v. Maloney, 9 Cir., 1957, 243 F.2d 293 (in personam); Imperial Oil v. Drlik, 6 Cir., 1956, 234 F.2d 4 (in personam) ; cf. Palazzolo v. Pan-Atlantic S.S. Corp., 2 Cir., 1954, 211 F.2d 277, affirmed Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. The instant libel contains a count for unseaworthiness and a count for negligence; this is permissible and, indeed, the accepted mode of pleading in this type of case; usually it makes little difference upon which recovery is granted, since unseaworthiness has virtually swallowed up negligence. The upshot of this situation has been a good deal of loose talk commingling negligence and unseaworthiness by counsel, and, in some court opinions, mixed in with scrambled jury instructions. See dissent Pope & Talbot v. Hawn, supra. Conceding that it generally makes little difference, except to the theorist, whether or not the two causes of suit are kept isolated, the instant case is not one of those. It is readily apparent from the evidence that no unseaworthiness has been shown. The offending antenna aboard the Ocean Deborah did not part, nor is it shown that it was in any manner defective either as to its inherent construction or rigging; its fall was caused solely by the affirmative act of the Mate who lost control of the “ginney line” (sic) as he was in the process of lowering the after end of the antenna. In other words, the libelant’s injuries were the result of the affirmative conduct of the ship’s Mate in handling a perfectly sound appurtenance of the ship. Our inquiry is then focused upon this conduct in order to determine if it be negligent or not, so as to visit liability upon the shipowner, the employer" }, { "docid": "14676108", "title": "", "text": "remedy in rem. They contend, however, that the prayer of the libel makes the libel a joint proceeding in rem and in personam, and that they can dismiss as to the in rem feature and maintain the action in personam. They offer an amendment to the libel, which in effect converts' the proceeding into an action in personam. They further contend that monition is unnecessary .when the respondent gives bond and files a claim to the property; that by giving bond the defendants admit the jurisdiction of the court and waive service. The question for decision arises on the allowance of the amendment offered. As already stated, proctors for libelant admit that she has no right to proceed in rem for the death of her husband. They state in their written brief, “our contention is that our prayer in the libel made the libel a joint proceeding in rem and in personam, and that we can dismiss as to the in rem feature and maintain the action in personam.” They continue, “The amendment which we offer effectively converts the proceeding into an action in personam.” The libel filed is clearly a libel in rem. It is not a joint proceeding in rem and in personam. It can hardly be contended that the libelant could dismiss as to the rem, and proceed only in personam on the original libel. The amendment proposed as the proctor himself states “converts” the proceeding into an in personam proceeding. The citation that B. Lloyd, master, and all other persons having or pretending to have any right, etc., and in particular Joseph F. Wilson & Co., owners, etc., may be cited to appear and answer, etc., is language appropriate to procedure in admiralty for the claimant to come in and release the property. The master has appeared only to protect his interest in the ship. As held in The Monte A. (D. C.) 12 Fed. 334, 335: “It would be unjust to hold that a foreign owner shall not appear in a foreign court to reclaim his property as against an unauthorized seizure without necessarily subjecting" }, { "docid": "7812468", "title": "", "text": "their liability, “they may equitably be treated as if they had been brought into the court by personal process”, and entered a decree for the recovery of the full award. In The Minnetonka, 2 Cir., 146 F. 509, a $5,000 bond was posted but a recovery of $7,000 was awarded. The second circuit affirmed the decree, stating, 146 F. at page 515: “The Atlantic Transport Company appeared in the action as claimant, and it was within the power of the court to direct a decree against it for the balance of the libelant’s loss. A court of admiralty has powers akin to those of a court of equity, and should not be hampered in its efforts to reach a substantial justice by the inexorable rules invoked by the claimant.” Appellees cite cases holding that an action in rem cannot be converted to an action in personam. Most of those cases were decided prior to the amendment of Admiralty Rule 13 when actions in rem could not be joined with actions in person-am, The Ethel, 5 Cir., 66 F. 340. However, since the amendment to the rules now permits such joinder in suits for mariners’ wages, see Willard Sutherland & Co. v. United States, D.C., 8 F.2d 358, there appears to be no just or logical reason for application of the former prohibition to the facts shown in the case at bar. Also, we think that appellees should not be heard to complain about any lack of service of process on them personally. Both of them reside within the jurisdiction of the district court. They had ample notice of the proceeding and appeared and filed their claim. Not only did they defend on the merits but they filed a cross-libel seeking to recover personally from appellant and his assignors certain sums alleged to be due them which arose out of the same fishing transaction upon which the libel was filed. They introduced testimony seeking to substantiate their claims. The trial court’s error in releasing the vessel without bond was at least in part engendered by appellees’ declarations that unless the vessel" }, { "docid": "9596721", "title": "", "text": "where there is no prayer, process, or personal judgment in the libel and no process and service upon the owner, the fact that he appears and answers the libel in' rem does not give the court jurisdiction to render a personal judgment against him. To the same effect is the decision in the case of The Monte A. (D. C.) 12 Fed. 334, and the case of The Lowlands (D. C.) 147 Fed. 986. Two cases have been cited and relied, upon by the libelants in asking to amend, which I have carefully examined. In The Virgin, 8 Pet. 538, 8 L. Ed. 1036, the Circuit Court entered a decree against the owners as in an action in personam, .when the action was in rem. The Supreme Court reversed the decree, and, in passing upon that point, says,. “The view which has been taken of the present case renders it wholly unnecessary to consider whether a decree in personam could be made by the Circuit Court upon a libel and proceeding in remand, although the aniount decreed to the libelant was very much larger than the-value of the vessel which had been taken by one of the claimants at a stipulated price, confined its decree to the amount thus determined, and fully .exonerated the owners from all amounts beyond the actual proceeds of the vessel. Clearly and distinctly overruling the opinion of the Circuit Court in permitting judgment to be given against the owners in an action in rem. In Chamberlain v. Ward, 21 How. 548, 16 L. Ed. 211, the Supreme Court say: “This was a suit in perspnam. It was commenced by the owners of the steamer Atlantic against the owners of the propeller Odenstrary and grew out of a collision.” It is further explained in that opinion that originally a libel was. filed against the propeller in rem and a process of attachment taken out, and in personam against the owners and summoning them as respondents. Upon exceptions taken to the form of the libel alleging an improper joinder of the vessel and owners, the case was" }, { "docid": "9596719", "title": "", "text": "a summons to appear and answer to the suit. The monition or notice usually embodied in the process calling ppon all persons having an interest in the vessel attached to come in and defend, their rights can under no circumstances be considered a personal summons as in an action in personam. The question in this case is whether upon the return of the attachment in an action in rem, with no other process issued or executed, the court had jurisdiction of an action which can only be properly brought in personam. In The Corsair, 145 U. S. 335, 12 Sup. Ct. 949, 36 L. Ed. 727, it is clearly and distinctly declared that no action of this character, the basis of which is the death of an individual, would lie in rém, unless the state laws gave a. lien upon the vessel, which is not the fact in. this state. This libel clearly and distinctly states an action in rem; the. prayer being that process issue against said vessel, her tackle and apparel, and that all persons interested in said vessel may be cited to appear and answer, and that said vessel may be condemned and sold to pay libelant’s claim. It cannot be claimed that this court, under the decision of The Corsair, supra, had any jurisdiction in an action in rem'in this case, and the question presented is, Can such libel be amended as to give the court jurisdiction over the owners of said, vessel so that a'valid decree could be entered against them in personam. This matter has been frequently before the courts, and has been in every instance determined in the negative. No action at present is in existence within the jurisdiction of the court against the owners of this vessel. They have not been summoned by publication or service of process of any kind. They have not appeared by a representative in their personal capacity, but simply by one on account of their connection with the res. In the case of The Ethel, 66 Fed. 340, 13 C. C. A. 504, it was held that," } ]

[ { "docid": "1588568", "title": "", "text": "United States cotton, said volume to be determined by the Secretary of Agriculture.” In attaining that goal, however, CCC was given some leeway, since it was also authorized to “accept bids in excess of the maximum prices specified herein [i.e., competitive world market prices],” although not permitted to “reject bids at such maximum prices unless a higher bid is received for the same cotton.” 70 Stat. 199, 7 U.S.C. § 1853. Passing over the Government’s substantive defenses that Section 203 did not apply at all to barters and did not, in any case, preclude an averaging of the world market price over a three-year period, we concentrate on the plaintiffs’ assumption that, once the court finds a violation of the statute, there is no escape from a judgment of recovery for them. This threshold postulate calls for inquiry. We can presuppose (without deciding) that the Department of Agriculture deviated from Section 203 when it pegged its cotton price above the current world level, but the probing question is whether that infringement should lead to an award of the additional monies paid by these purchasers for the CCC’s cotton. In a series of decisions growing out of the sale of government-owned vessels after World War II, this court held that buyers who had been charged more than the prices set by Congress could recover the excess, even though-they had entered into contracts to pay those higher, sums. A. H. Bull S.S. Co. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952); Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409, 411-12, 414, 119 F. Supp. 731, 732-34 (1953), cert. denied, 348 U.S. 834 (1954); Clapp v. United States, 127 Ct. Cl. 505, 508-09, 513-15, 117 F. Supp. 576, 577-78, 581-82, cert. denied, 348 U.S. 834 (1954); Nautilus Shipping Corp. v. United States, 141 Ct. Cl. 391, 394-95, 158 F. Supp. 353, 354-55 (1958) ; Sprague S.S. Co. v. United States, 145 Ct. Cl. 642, 645-47, 172 F. Supp. 674, 675-76 (1959); Suwanee S. S. Co. v. United States, 150 Ct. Cl. 331, 333, 279 F. 2d" } ]

[ { "docid": "6036880", "title": "", "text": "a claim within our jurisdiction. The Court ruled that \"the transaction was purely voluntary on [the plaintiffs] part, and that while there was a mistake it was mutual and one of law — a mistake on his part not induced by any attempt to deceive or misrepresentation by the government officials.” Id. at 515. (In cases such as Rough Diamond Co. v. United States, 173 Ct. Cl. 15, 351 F.2d 636 (1965), cert. denied, 383 U.S. 957 (1966), we have followed Edmondston and barred recovery of overpayments to the government.) In a line of cases originally arising out of sales of surplus ships by the government after World War II, however, this court has found the Edmondston doctrine inapplicable. See Finn v. United States, 192 Ct. Cl. 814, 428 F.2d 828 (1970); Chris Berg, Inc. v. United States, 192 Ct. Cl. 176, 426 F.2d 314 (1970); Seatrade Corp. v. United States, 152 Ct. Cl. 356, 285 F.2d 448 (1961); Suwanee Steamship Co. v. United States, 150 Ct. Cl. 331, 279 F.2d 874 (1960); Sprague Steamship Co. v. United States, 145 Ct. Cl. 642, 172 F. Supp. 674 (1959); Nautilus Shipping Corp. v. United States, 141 Ct. Cl. 391, 158 F. Supp. 353 (1958); Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, cert. denied, 348 U.S. 834 (1954); Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409, 119 F. Supp. 731 (1953), cert. denied, 348 US. 834 (1954); A.H. Bull Steamship Co. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952). Cf. Board of Directors & Officers, Forbes Federal Credit Union v. National Credit Union Administration, 477 F.2d 777 (10th Cir.), cert. denied, 414 U.S. 924 (1973); Standard Airlines, Inc. v. Civil Aeronautics Board, 177 F.2d 18 (D.C. Cir. 1949); Peoples Bank v. Eccles, 161 F.2d 636 (D.C. Cir. 1947), rev’d on other grounds, 333 U.S. 426 (1948) (administrative agencies cannot enter into contracts contrary to statute). The line we have drawn is that a voluntary payment may be recovered if the statute barring the payment was enacted for the benefit of" }, { "docid": "23210669", "title": "", "text": "determination of a reasonable level contrary to its terms. Bethlehem Steel Corp. v. United States, 191 Ct. Cl. 141, 423 F. 2d 300 (1970). It is true defendant did not there make the argument it makes here. If a regulation appears intended to define and state the rights of a class of persons, it is presumptively intended to benefit those persons. Fletcher v. United States, 183 Ct. Cl. 1, 392 F. 2d 266 (1968). If officials of the Government make a contract they are not authorized to make, the other party is not bound by estoppel or acquiescence or even failing to protest. Nautilus Shipping Corp. v. United States, 141 Ct. Cl. 391, 158 F. Supp. 353 (1958). In Rough Diamond Co. v. United States, 173 Ct. Cl. 15, 20-27, 351 F. 2d 636, 639-43 (1965), cert. denied, 383 U.S. 957 (1966), we analyzed the differences as to contractor’s rights under contracts made in violation of law, when the law violated was or was not made for the benefit of the contracting party. It is superfluous to repeat that discussion. Suffice it that Rough Diamond supports plaintiff’s position here, not that of defendant which cites it, once it is decided as we have that the ASPE provisions on mistaken bids were written for the protection of bidders. This analysis establishes that the award of the contract to plaintiff at the bid price, with knowledge of its mistake and over its protest, was a clear-cut violation of law. Plaintiff is entitled to reformation of the contract to provide a price of $657,000. Defendant’s motion for summary judgment is denied. Plaintiff’s motion for summary judgment is allowed. Judg ment will be entered for .plaintiff in an amount to be determined under Buie 131. APPENDIX A Pertinent Armed Services Procurement Begulations in effect at bid opening. 32 C.F.B. § 2.406 and ff. (1967) : § 2.406 Mistakes in bids. § 2.406-1 General. After the opening of bids, contracting officers shall examine all bids for mistakes. In cases of apparent mistakes, and in cases where the contracting officer has reason to believe that a" }, { "docid": "23479787", "title": "", "text": "in 25 FE 14118. The effective date of the contract in the instant case was December 19,1960. Consequently, ASPE 2.406-3 does not apply to this case. It appears that prior to the publication of ASPE 2.406-3, the rule governing the problem before us was set forth in Massman Constr. Co. v. United States, 102 Ct. Cl. 699, 717, 60 F. Supp. 635, 643, cert. denied, 325 U.S. 866 (1945) as follows: At the time the contract was awarded to the plaintiff, pursuant to its bid, and at the time it signed the contract, the plaintiff was not mistaken. It had become aware of the mistake in its bid, and faced the problem of whether it was willing to sign a contract for the figure which it had, by mistake since discovered, bid. The Government was also aware of the plaintiff’s claim that it had made a mistake in its bid. There was not, then, at the time of signing the contract, any lack of knowledge, either mutual or unilateral, which caused either of them to make the contract which they did make, when in fact they intended to make a different contract. That being so, if we should reform the contract as the plaintiff requests, we would be making for the parties the very contract which one of them, the Government, expressly refused to make at that time, though requested to do so by the plaintiff. See also Board of Trustees, etc. v. O. D. Wilson Co., 133 F. 2d 399 (D.C. Cir. 1943) ; Early & Daniel Co. v. United States, 271 U.S. 140 (1926) ; aff'g 59 Ct. Cl. 932 (1924); Willard, Sutherland & Co. v. United States, 262 U.S. 489 (1923), aff'g 56 Ct. Cl. 413 (1921). The plaintiff is clearly not entitled to reformation of the contract under the rule announced in the Massman Oonstruetion Go. case, as well as for other reasons set forth above for denying such reformation. Mention should be made of the fact that after plaintiff submitted its bid but before the award of the contract, the plaintiff learned of the change" }, { "docid": "23210667", "title": "", "text": "to the court’s attention. There was nothing to show in any clear-cut way that defendant’s officers violated any law that governed their acts in refusing to adjust the bid or rescind for the mistake. The court, as then constituted, would reform a contract when general equitable principles so dictated, even when signed with knowledge of the mistake, as appears in Rappoli v. United States, 98 Ct. Cl. 499 (1943). The facts there were like Massman1 s except that defendant’s officers procured Rappoli’s signature to the contract at the bid price by promising they would get it reformed later, and this they failed to do. As we showed in Chernick, supra, the law respecting mistaken bids has become more lenient towards the bidder in the years that have elapsed since 1945. The ASPR is law which governs the award and interpretation of contracts as fully as if it were made a part thereof. G. L. Christian & Assoc. v. United States, 160 Ct. Cl. 1, 312 F. 2d 418, reh. denied, 160 Ct. Cl. 58, 320 F. 2d 345, cert. denied, 375 U.S. 954 (1963). It is binding on defendant’s officers. Newport News Shipbuilding & Dry Dock Co. v. United States, 179 Ct. Cl. 97, 374 F. 2d 516 (1967). Defendant says that this part of ASPR was not made for the benefit of bidders. Defendant cites Hartford Accident & Indemnity Co. v. United States, 130 Ct. Cl. 490, 492-4, 127 F. Supp. 565, 566-67 (1955) which makes a like holding, but with, respect not to this part of ASPE but to a 'different regulation prescribing standard forms of construction contracts. The only other citation is to a 'Comptroller General’s decision on a wholly distinct part of ASPE. We do not think it possible to determine that all of ASPE was or was not made for the benefit of bidders. Different parts may have different purposes. We have only just now held that provisions of ASPE providing a “weighted guidelines method” for determining a reasonable level of profit under an escalation clause could be invoked by a contractor against an administrative" }, { "docid": "8856487", "title": "", "text": "an anonymous telephone call stating that the competition was going to bid in the “low 30’s.” Id. When LaBarge submitted the low bid, a government official attempted, unsuccessfully, to have LaBarge declared technically deficient. Id. LaBarge protested to the GAO, claiming that Victaulic was receiving preferential treatment, and requesting an award at its original bid, which was higher than its subsequent best and final offer. Id. at 1550. The Army nevertheless awarded the contract to LaBarge at its last, and lower, best and final offer. Id. After contract completion, LaBarge sought the benefit of its original bid price, based on an alleged conspiracy of government personnel to direct the contract to Victaulic. Id. The Federal Circuit, however, did not find for LaBarge. Id. at 1556. The Federal Circuit characterized La-Barge’s concerns as raising an issue of auction techniques prohibited by the FAR, noting that the prohibition on auctioning was for the benefit of the contractor. Id. at 1552. This is the same issue raised by MIE in the present case. However, unlike MIE, La-Barge, like the contractor in Chris Berg, raised its precise concerns in a GAO protest, before award, id. at 1550. The Federal Circuit in LaBarge concluded that: According to the government, LaBarge’s allegations of government misconduct are the kind of allegations that are ordinarily made in pre-award bid protests, not after award of a contract. However, if government officials make a contract they are not authorized to make, in violation of a law enacted for the contractor’s protection, the contractor is not bound by estoppel, acquiescence or failure to protest. Chris Berg. Inc. v. United States, 426 F.2d 314, 317, 192 Ct.Cl. 176, 183 (1970); Rough Diamond Co. v. United States, 351 F.2d 636, 639-43, 173 Ct.Cl. 15, 20-27 (1965), cert. denied, 383 U.S. 957, 86 S.Ct. 1221, 16 L.Ed.2d 300 (1966). In cases in which a breach of law is inherent in the writing of the contract, reformation is available despite the contractor’s initial adherence to the contract provision later shown to be illegal. Chris Berg. Inc., 426 F.2d at 317-18, 192 Ct.Cl. at 183 (contractor" }, { "docid": "8720116", "title": "", "text": "our predecessor courts, the United States Court of Claims, has applied the equitable principle of contract reformation when a contract has been written in violation of a law or regulation enacted for the benefit of prospective contractors. CRF-A Joint Venture, Etc. v. United States, 624 F.2d 1054, 1061-62, 224 Ct. Cl. 312, 324-26 (1980) (treating contracting officer’s illegal requirement that first article samples be converted to production quality radio transmitters as an exercise of contract’s option provision entitling contractor to increased payments); Applied Devices Corp. v. United States, 591 F.2d 635, 640-41, 219 Ct.Cl. 109, 119-20 (1979) (holding contractor was entitled to reformation of contract’s cancellation charge term because government had violated regulation in calculating charge). These cases are binding precedent. South Corp. v. United States, 690 F.2d 1368, 1370 (Fed.Cir.1982) (in banc). See also Beta Sys., Inc. v. United States, 838 F.2d 1179, 1185 (Fed.Cir.1988) (if government violated applicable regulations in setting economic index incorporated into contract, “the government cannot, by law, benefit from it” and contract must be reformed). In this case, the prohibition of auction techniques in FAR § 15.610(d) is plainly for the benefit of the contractor. The regulation insures that every bidder and potential contractor operates with 'equal knowledge of its competitors’ positions. Because LaBarge alleges that the government engaged in auctioning techniques violating section 15.160(d) in the formation of its contract, LaBarge may seek reformation of that contract. Because LaBarge’s reformation claim may independently rest on this theory, it does not solely concern the implied contract to treat bids honestly and fairly. According to the government, La-Barge’s allegations of government misconduct are the kind of allegations that are ordinarily made in pre-award bid protests, not after award of a contract. However, if government officials make a contract they are not authorized to make, in violation of a law enacted for the contractor’s protection, the contractor is not bound by estoppel, acquiescence or failure to protest. Chris Berg, Inc. v. United States, 426 F.2d 314, 317, 192 Ct.Cl. 176, 183 (1970); Rough Diamond Co. v. United States, 351 F.2d 636, 639-43, 173 Ct.Cl. 15, 20-27" }, { "docid": "23479786", "title": "", "text": "of the plaintiff. This court has held that reformation will not be awarded on the unilateral mistake of one of the parties to a contract. Natus Corp. v. United States, 178 Ct. Cl. 1, 14, 371 F. 2d 450, 458 (1967); Olin Mathieson Chemical Corp. v. United States, 179 Ct. Cl. 368, 408 (1967); Allied Contractors, Inc. v. United States, 159 Ct. Cl. 548, 310 F. 2d 945 (1962) ; California-Pacific Utilities Co. v. United States, 194 Ct. Cl. 703, 717-19 (1971); and Albano Cleaners, Inc. v. United States, supra. Finally, plaintiff argues that the contract should be reformed because of the provisions of ASPE. 2.406-3 which authorizes the contracting officer to correct mistakes in bids where such mistakes are discovered after the bid is opened but before the award of the contract. The plaintiff says that such is the situation in this case and the regulation requires that the contract be reformed. The trouble with this argument is that ASPE 2.406-3 did not become effective until December 31, 1960, when it was first published in 25 FE 14118. The effective date of the contract in the instant case was December 19,1960. Consequently, ASPE 2.406-3 does not apply to this case. It appears that prior to the publication of ASPE 2.406-3, the rule governing the problem before us was set forth in Massman Constr. Co. v. United States, 102 Ct. Cl. 699, 717, 60 F. Supp. 635, 643, cert. denied, 325 U.S. 866 (1945) as follows: At the time the contract was awarded to the plaintiff, pursuant to its bid, and at the time it signed the contract, the plaintiff was not mistaken. It had become aware of the mistake in its bid, and faced the problem of whether it was willing to sign a contract for the figure which it had, by mistake since discovered, bid. The Government was also aware of the plaintiff’s claim that it had made a mistake in its bid. There was not, then, at the time of signing the contract, any lack of knowledge, either mutual or unilateral, which caused either of them to" }, { "docid": "21260802", "title": "", "text": "that increased plaintiff’s costs. But, that does not justify a shift of such costs to defendant unless defendant had agreed to accept them or, as National Presto teaches, “would have been willing, if it had known the true facts from the beginning, to bear a substantial part of the additional expenses.” 167 Ct. Cl. at 769, 338 F. 2d at 112. Here, it not only did not so agree but, in anticipation of difficulties, wrote the contract in such a way as to avoid their burden. Virginia Eng. Co. v. United States, 101 Ct. Cl. 516 (1944), and Tobin Quarries, Inc. v. United States, 114 Ct. Cl. 286, 84 F. Supp. 1021 (1949), provide no support for plaintiff’s claim. Both cases involved misrepresentation by the Government. There was no Government misrepresentation in the instant case. In research and development contracts where costs are uncertain, the parties often agree to share those that cannot be foreseen. In fixed-price contracts, such as here where some risks are under control of third parties, if the Government intends to pay a part or all of the labor or material costs whatever they might be (otherwise the price might be much higher to cover the risk), such cost estimates frequently are not required to be included in bid estimates. Instead the contract incorporates an article for escalation adjustments in price according to an agreed formula reflecting labor or material cost increases during performance. This makes certain that the contractor will not lose a reasonable profit due to such contingencies. Cf. Bethlehem Steel Corp. v. United States, 191 Ct. Cl. 141, 423 F. 2d 300 (1970). Defendant put no such clause in the contract here nor even a changed conditions clause for extra work. Absence of such negates belief that defendant intended at the outset to agree to the relief now sought or did not intend to put the risk of changed conditions on the contractor alone. This brings the problem within the Flippin rule where the contractor also tripped over both obstacles. Plaintiff would convert this fixed-price contract into a cost-plus contract and make the" }, { "docid": "8856488", "title": "", "text": "the contractor in Chris Berg, raised its precise concerns in a GAO protest, before award, id. at 1550. The Federal Circuit in LaBarge concluded that: According to the government, LaBarge’s allegations of government misconduct are the kind of allegations that are ordinarily made in pre-award bid protests, not after award of a contract. However, if government officials make a contract they are not authorized to make, in violation of a law enacted for the contractor’s protection, the contractor is not bound by estoppel, acquiescence or failure to protest. Chris Berg. Inc. v. United States, 426 F.2d 314, 317, 192 Ct.Cl. 176, 183 (1970); Rough Diamond Co. v. United States, 351 F.2d 636, 639-43, 173 Ct.Cl. 15, 20-27 (1965), cert. denied, 383 U.S. 957, 86 S.Ct. 1221, 16 L.Ed.2d 300 (1966). In cases in which a breach of law is inherent in the writing of the contract, reformation is available despite the contractor’s initial adherence to the contract provision later shown to be illegal. Chris Berg. Inc., 426 F.2d at 317-18, 192 Ct.Cl. at 183 (contractor was entitled to reformation of a price increase after being denied leave to correct a mistaken bid in violation of applicable regulations, even though contractor had performed the uncorrected contract). Like the contractor in Chris Berg. Inc., LaBarge may seek reformation of its price term, even after performance, if that term was allegedly diminished by unlawful government acts. Id. at 1552-53. In spite of the above language, the Federal Circuit did not reach the issue of waiver, deciding instead that La-Barge would not recover due to the determination that the government had not engaged in prohibited auctioning conduct: The government argues that LaBarge waived its right to challenge the request for best and final offers because it did not pursue a pre-award bid protest. Because we affirm the Board’s [Armed Services Board of Contract Appeals] conclusion that LaBarge cannot succeed on the merits of its claim, we need not address this issue. Id. at 1556. The Federal Circuit in LaBarge stated that the issue was, “under what circumstances a request for best and final offers" }, { "docid": "23210668", "title": "", "text": "F. 2d 345, cert. denied, 375 U.S. 954 (1963). It is binding on defendant’s officers. Newport News Shipbuilding & Dry Dock Co. v. United States, 179 Ct. Cl. 97, 374 F. 2d 516 (1967). Defendant says that this part of ASPR was not made for the benefit of bidders. Defendant cites Hartford Accident & Indemnity Co. v. United States, 130 Ct. Cl. 490, 492-4, 127 F. Supp. 565, 566-67 (1955) which makes a like holding, but with, respect not to this part of ASPE but to a 'different regulation prescribing standard forms of construction contracts. The only other citation is to a 'Comptroller General’s decision on a wholly distinct part of ASPE. We do not think it possible to determine that all of ASPE was or was not made for the benefit of bidders. Different parts may have different purposes. We have only just now held that provisions of ASPE providing a “weighted guidelines method” for determining a reasonable level of profit under an escalation clause could be invoked by a contractor against an administrative determination of a reasonable level contrary to its terms. Bethlehem Steel Corp. v. United States, 191 Ct. Cl. 141, 423 F. 2d 300 (1970). It is true defendant did not there make the argument it makes here. If a regulation appears intended to define and state the rights of a class of persons, it is presumptively intended to benefit those persons. Fletcher v. United States, 183 Ct. Cl. 1, 392 F. 2d 266 (1968). If officials of the Government make a contract they are not authorized to make, the other party is not bound by estoppel or acquiescence or even failing to protest. Nautilus Shipping Corp. v. United States, 141 Ct. Cl. 391, 158 F. Supp. 353 (1958). In Rough Diamond Co. v. United States, 173 Ct. Cl. 15, 20-27, 351 F. 2d 636, 639-43 (1965), cert. denied, 383 U.S. 957 (1966), we analyzed the differences as to contractor’s rights under contracts made in violation of law, when the law violated was or was not made for the benefit of the contracting party. It is" }, { "docid": "8720117", "title": "", "text": "prohibition of auction techniques in FAR § 15.610(d) is plainly for the benefit of the contractor. The regulation insures that every bidder and potential contractor operates with 'equal knowledge of its competitors’ positions. Because LaBarge alleges that the government engaged in auctioning techniques violating section 15.160(d) in the formation of its contract, LaBarge may seek reformation of that contract. Because LaBarge’s reformation claim may independently rest on this theory, it does not solely concern the implied contract to treat bids honestly and fairly. According to the government, La-Barge’s allegations of government misconduct are the kind of allegations that are ordinarily made in pre-award bid protests, not after award of a contract. However, if government officials make a contract they are not authorized to make, in violation of a law enacted for the contractor’s protection, the contractor is not bound by estoppel, acquiescence or failure to protest. Chris Berg, Inc. v. United States, 426 F.2d 314, 317, 192 Ct.Cl. 176, 183 (1970); Rough Diamond Co. v. United States, 351 F.2d 636, 639-43, 173 Ct.Cl. 15, 20-27 (1965), cert. denied, 383 U.S. 957, 86 S.Ct. 1221,16 L.Ed.2d 300 (1966). In cases in which a breach of law is inherent in the writing of the contract, reformation is available despite the contractor’s initial adherence to the contract provision later shown to be illegal. Chris Berg, Inc., 426 F.2d at 317-18, 192 Ct.Cl. at 183 (contractor was entitled to reformation of a price increase after being denied leave to correct a mistaken bid in violation of applicable regulations, even though contractor had performed the uncorreeted contract). Like the contractor in Chris Berg, Inc., LaBarge may seek reformation of its price term, even after per formance, if that term was allegedly diminished by unlawful government acts. Moreover, LaBarge’s claim “relates to” the coupling contract both as to operative facts and requested relief. The operative facts as alleged affected the lawfulness of contract formation and the reformability of contract terms. LaBarge alleges that the coupling price in its contract is lower than it would have been if the government had acted lawfully during the solicitation process" }, { "docid": "22333290", "title": "", "text": "retains, in its discretion, the right to reject all bids without any liability. Robert F. Simmons & Assocs. v. United States, 175 Ct. Cl. 510, 360 F. 2d 962 (1966); ASPR § 2.404 et. seq., FPE § 1-2.404 et seq.). For instance, there would seem to be a strong presumption against entitlement to bid preparation expenses where the allegation is that the Government incorrectly adjudged a competitor to be “responsible” prior to contract award. As we have noted, procurement officials have a great deal of discretion in making this determination (aside from a prior suspension or debarment), and some of the criteria are not readily susceptible to reasoned judicial review. See ASPE §§ 1.900 et seq.; FPE § 1-1.1203. In addition, correct appraisal of the responsibility of a prospective contractor is clearly in the self-interest of the procuring agency; there is a built-in stimulus against error. If the determination is erroneous, and the contractor ultimately defaults on his obligation, the Government will likely suffer substantial delay and inconvenience, even though the defaulting party will be liable to answer in damages, including perhaps reprocurement costs. See, e.g., ASPE §§ 8.707,8.709; FPE §§ 1-8.707,1-8.709. Absent fraud or bad faith, it is not easy, therefore, to conjure up situations in which a disappointed bidder could recover bid preparation expenses under the claim that the defendant wrongly appraised the awardee as “responsible”. Again, it may be that even a proven violation of some procurement regulation, in selecting the competitor, will not necessarily make a good claim. Not every regulation is established for the benefit of bidders as a class, 'and still fewer may create enforceable rights for the awardee’s competitors. Cf. Chris Berg, Inc. v. United States, 192 Ct. Cl. 176, 182-83, 426 F. 2d 314, 317 (1970). On the other hand, it could be — • we do not decide — that competitors do have an enforceable right against the making of an award to a clearly nonconforming bidder, even where the agency failed to appreciate that the bid was materially nonresponsive. Cf. Prestex Inc. v. United States, 162 Ct. Cl. 620, 320" }, { "docid": "21296145", "title": "", "text": "gets the deliveries of the first two program years for less than it would have, had it obeyed ASPR. Plaintiff relies on the so-called \"Christian doctrine,” G. L. Christian and Associates v. United States, 160 Ct. Cl. 1, 312 F.2d 418, rehearing denied, 160 Ct. Cl. 58, 320 F.2d 345, cert. denied, 375 U.S. 954 (1963), by which ASPR requirements are regarded as parts of contracts as fully as if spelled out therein. Accord, Chris Berg, Inc. v. United States, 192 Ct. Cl. 176, 426 F.2d 314 (1970); Newport News Shipbuilding and Drydock Co. v. United States, 179 Ct. Cl. 97, 374 F.2d 516 (1967). We agree with plaintiff that the requirements of ASPR l-322.2(c) and (d) are part of plaintiffs contract as fully as if stated therein, and proceed to determine where that gets the plaintiff. The said provisions were obviously written for the protection of bidders since they clearly are a main inducement for bidders to enter into multiple year installment contracts. As held in Berg, supra, the contract was made in violation of law when made in disregard of such a provision. This court in Rough Diamond Co. v. United States, 173 Ct. Cl. 15, 351 F.2d 636 (1965), cert. denied, 383 U.S. 957 (1966), carefully analyzed the differences in treatment between a contract written in violation of a provision of law enacted for the contractor’s protection, and violation of a provision of law as to which it can only be said that the contractor derives an incidental benefit from the provision if it is observed. The contractor in the former case can obtain reformation and is not bound by his estoppel, acquiescence, and even failure to protest. Berg, supra. In cases of breach by the government subsequent to contract award, the contractor can easily lose its remedies by failure to protest once the breach is known to it, as in Ling-Temco-Vought, Inc. v. United States, 201 Ct. Cl. 135, 475 F.2d 630 (1973), but such cases must be distinguished from those in which a breach of law is inherent in the very writing of the contract" }, { "docid": "21296146", "title": "", "text": "of law when made in disregard of such a provision. This court in Rough Diamond Co. v. United States, 173 Ct. Cl. 15, 351 F.2d 636 (1965), cert. denied, 383 U.S. 957 (1966), carefully analyzed the differences in treatment between a contract written in violation of a provision of law enacted for the contractor’s protection, and violation of a provision of law as to which it can only be said that the contractor derives an incidental benefit from the provision if it is observed. The contractor in the former case can obtain reformation and is not bound by his estoppel, acquiescence, and even failure to protest. Berg, supra. In cases of breach by the government subsequent to contract award, the contractor can easily lose its remedies by failure to protest once the breach is known to it, as in Ling-Temco-Vought, Inc. v. United States, 201 Ct. Cl. 135, 475 F.2d 630 (1973), but such cases must be distinguished from those in which a breach of law is inherent in the very writing of the contract involved. In such cases reformation is available despite the initial adherence of the contractor to the contract provision now shown to be illegal. In Berg plaintiff was denied correction of a mistaken bid contrary to an ASPR provision. It adhered to the contract uncorrected yet it recovered. Plaintiff is entitled to equitable reformation of the \"cancellation ceiling” and a redetermination of the proper cancellation charge within the reformed ceiling percentage. Accordingly, defendant’s motion for summary judgment is denied and plaintiffs motion for summary judgment is denied as to its entitlement to a settlement under the standard termination article but granted as to its entitlement to reform of the three percent \"cancellation ceiling.” The cause is remanded to the trial division under Rule 131(c) for ascertainment of a proper cancellation charge in conformity with ASPR § l-322(c) and (d), as they were at the time of contract award. APPENDIX A Pages 2, 3, 4, and part of 5, ASBCA Findings in Appeal of Applied Devices Corp. No. 18384 ' On 22 April 1968, the government issued" }, { "docid": "23210666", "title": "", "text": "325 U.S. 866 (1945). It is that there is no basis for reformation because plaintiff knew of the mistake and signed the contract anyway. In that case, as here, the plaintiff had contracted at the bid price after defendant had refused to let it correct a mistake. It alleged bid bond coercion, as here, and reluctance to alienate a valued customer, as here, and accompanied its signature, as here, with an emphatic written protest. The court thought that the Massman Company was not free from negligence in making the mistake it did. That is a factor of diminished importance today. In our recent decision in Ruggiero v. United States, 190 Ct. Cl. 327, 335, 420 F. 2d 709, 713 (1970), we pointed out as a characteristic of mistaken bid cases in which relief was granted, both before and after Massman that just about all the bidders were “guilty of egregious blunders.” A more important and, we think, controlling distinction is that there was not any ASPE, at the Massman date, or any other regulation called to the court’s attention. There was nothing to show in any clear-cut way that defendant’s officers violated any law that governed their acts in refusing to adjust the bid or rescind for the mistake. The court, as then constituted, would reform a contract when general equitable principles so dictated, even when signed with knowledge of the mistake, as appears in Rappoli v. United States, 98 Ct. Cl. 499 (1943). The facts there were like Massman1 s except that defendant’s officers procured Rappoli’s signature to the contract at the bid price by promising they would get it reformed later, and this they failed to do. As we showed in Chernick, supra, the law respecting mistaken bids has become more lenient towards the bidder in the years that have elapsed since 1945. The ASPR is law which governs the award and interpretation of contracts as fully as if it were made a part thereof. G. L. Christian & Assoc. v. United States, 160 Ct. Cl. 1, 312 F. 2d 418, reh. denied, 160 Ct. Cl. 58, 320" }, { "docid": "21260803", "title": "", "text": "pay a part or all of the labor or material costs whatever they might be (otherwise the price might be much higher to cover the risk), such cost estimates frequently are not required to be included in bid estimates. Instead the contract incorporates an article for escalation adjustments in price according to an agreed formula reflecting labor or material cost increases during performance. This makes certain that the contractor will not lose a reasonable profit due to such contingencies. Cf. Bethlehem Steel Corp. v. United States, 191 Ct. Cl. 141, 423 F. 2d 300 (1970). Defendant put no such clause in the contract here nor even a changed conditions clause for extra work. Absence of such negates belief that defendant intended at the outset to agree to the relief now sought or did not intend to put the risk of changed conditions on the contractor alone. This brings the problem within the Flippin rule where the contractor also tripped over both obstacles. Plaintiff would convert this fixed-price contract into a cost-plus contract and make the defendant an insurer upon the assumption that Congress wanted the project so badly that it would pay any price for it. However sympathetic we may be to plaintiff’s hardship, we can find no basis for plaintiff’s recovery as a matter of law or in equity through contract reformation. We cannot assume that had it known these increased labor costs were inevitable Congress would have agreed to pay for them. We cannot base an award by judgment upon speculation or in ference as to congressional attitudes. In Stafford v. United States, supra, and Flippin Materials Co. v. United States, supra, and in Ozark Dam Constructors v. United States, 153 Ct. Cl. 120, 288 F. 2d 913 (1961), the court held that it could not grant an equitable adjustment to restore a contractor’s losses due to labor troubles for which the parties to the contract were not to blame. There, as here, increased costs arising from labor troubles were not caused or desired by the contracting parties and neither could have prevented the same. Defendant’s motion for" }, { "docid": "6036881", "title": "", "text": "Co. v. United States, 145 Ct. Cl. 642, 172 F. Supp. 674 (1959); Nautilus Shipping Corp. v. United States, 141 Ct. Cl. 391, 158 F. Supp. 353 (1958); Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, cert. denied, 348 U.S. 834 (1954); Southeastern Oil Florida, Inc. v. United States, 127 Ct. Cl. 409, 119 F. Supp. 731 (1953), cert. denied, 348 US. 834 (1954); A.H. Bull Steamship Co. v. United States, 123 Ct. Cl. 520, 108 F. Supp. 95 (1952). Cf. Board of Directors & Officers, Forbes Federal Credit Union v. National Credit Union Administration, 477 F.2d 777 (10th Cir.), cert. denied, 414 U.S. 924 (1973); Standard Airlines, Inc. v. Civil Aeronautics Board, 177 F.2d 18 (D.C. Cir. 1949); Peoples Bank v. Eccles, 161 F.2d 636 (D.C. Cir. 1947), rev’d on other grounds, 333 U.S. 426 (1948) (administrative agencies cannot enter into contracts contrary to statute). The line we have drawn is that a voluntary payment may be recovered if the statute barring the payment was enacted for the benefit of the person seeking recovery but may not be recovered if enacted for the benefit of another. Rough Diamond Co., supra, 173 Ct. Cl. at 21-26, 351 F.2d at 639-42; Chris Berg, Inc., supra. Where the payments were exacted in violation of a statute intended to benefit the person seeking recovery, it is immaterial that that person failed to protest when making the payment. See Finn, supra, 192 Ct. Cl. at 820, 428 F.2d at 831. In the present case we have held that section 185(Z) permits the Secretary to require reimbursement of costs the government has incurred only if he acts pursuant to regulation and only for expenses incurred after the effective date of the statute. These limitations are designed for the benefit of the applicants for and holders of rights of way and permits and not for the benefit of the government. These two requirements — promulgation of regulations and the prospective operation of the authorization — are intended to give applicants and permittees the opportunity to be heard before the amount of reimbursement" }, { "docid": "17820493", "title": "", "text": "Tri-Cor, Inc. v. United States, 198 Ct. Cl. 187, 458 F. 2d 112, 122 (1972); Max Drill, Inc. v. United States, 192 Ct. Cl. 608, 614, 427 F. 2d 1283, 1237 (1970). Accordingly the court is free to reexamine the contract language and independently reach its own conclusion. Plaintiff’s proposal, consisting of three prices for different methods of packaging, was made in light of its above interpretation of the transportation regulations that the kits could not be shipped loose unless the coil springs, brake line, and brackets were physically attached to the axle, which decision had not been made at the time the quotation was submitted. Plaintiff undoubtedly did not intend to offer the POD a choice between the three prices. However, subjective intent is not important and the proposal must be viewed from an objective standpoint. Considering that plaintiff has failed to prove that the method of packaging was dependent upon the outcome of the final design and development of the installation procedures or that defendant so believed, the POD’s interpretation that the proposal offered it a choice between three alternative methods and corresponding prices was not only a reasonable interpretation but probably the only reasonable one. This is particularly true since defendant was responsible for damage in transit. Defendant’s letter of contract award and notice to proceed dated June 30, 1966, was a valid acceptance of plaintiff’s offer. Although, said letter contemplated a formal document to be drawn up in the future, it expressed an intent to be presently bound. Under these circumstances, the contract became effective immediately. Penn-Ohio Steel Corp. v. United States, 173 Ct. Cl. 1064, 1085, 354 F. 2d 254, 266-67 (1965); Rough Diamond Co. v. United States, 173 Ct. Cl. 15, 31 & n. 13, 351 F. 2d 636, 645 & n. 13 (1965), cert. denied, 383 U.S. 957 (1966); Hunt and Wilett, Inc. v. United States, 168 Ct. Cl. 256, 266, 351 F. 2d 980, 986 (1964); restatement oe contraots § 26 (1932). The POD’s letter did not state that it was accepting any particular one of the alternatives set forth in plaintiff’s" }, { "docid": "23210665", "title": "", "text": "range is not inconsistent with “clear and convincing evidence” of what the bid would have been. Plaintiff proposes that the “rounded off” figure of $616,000 be reformed by adding the “rounded off” figure of $41,000, making a reformed contract price of $657,000, and this suggestion we adopt as it puts plaintiff at the bottom of the range of uncertainty. Chernick v. United States, 178 Ct. Cl. 498, 507, 372 F. 2d 492, 497 (1967). We do not necessarily adopt plaintiff’s semantics as we think it legally irrelevant whether these small adjustments are known as “rounding off” or by some other name. We add the further caution that in deeming a bid reduction of % of one percent inconsequential we have taken into account that the work was to be done not at home but in the Trust Territory, where wide differences among the bids were predictable and actually occurred. We turn now to defendant’s principal argument, which builds on Massman Construction Co. v. United States, 102 Ct. Cl. 699, 60 F. Supp. 635, cert. denied 325 U.S. 866 (1945). It is that there is no basis for reformation because plaintiff knew of the mistake and signed the contract anyway. In that case, as here, the plaintiff had contracted at the bid price after defendant had refused to let it correct a mistake. It alleged bid bond coercion, as here, and reluctance to alienate a valued customer, as here, and accompanied its signature, as here, with an emphatic written protest. The court thought that the Massman Company was not free from negligence in making the mistake it did. That is a factor of diminished importance today. In our recent decision in Ruggiero v. United States, 190 Ct. Cl. 327, 335, 420 F. 2d 709, 713 (1970), we pointed out as a characteristic of mistaken bid cases in which relief was granted, both before and after Massman that just about all the bidders were “guilty of egregious blunders.” A more important and, we think, controlling distinction is that there was not any ASPE, at the Massman date, or any other regulation called" }, { "docid": "23210670", "title": "", "text": "superfluous to repeat that discussion. Suffice it that Rough Diamond supports plaintiff’s position here, not that of defendant which cites it, once it is decided as we have that the ASPE provisions on mistaken bids were written for the protection of bidders. This analysis establishes that the award of the contract to plaintiff at the bid price, with knowledge of its mistake and over its protest, was a clear-cut violation of law. Plaintiff is entitled to reformation of the contract to provide a price of $657,000. Defendant’s motion for summary judgment is denied. Plaintiff’s motion for summary judgment is allowed. Judg ment will be entered for .plaintiff in an amount to be determined under Buie 131. APPENDIX A Pertinent Armed Services Procurement Begulations in effect at bid opening. 32 C.F.B. § 2.406 and ff. (1967) : § 2.406 Mistakes in bids. § 2.406-1 General. After the opening of bids, contracting officers shall examine all bids for mistakes. In cases of apparent mistakes, and in cases where the contracting officer has reason to believe that a mistake may have been made, he shall request from the bidder a verification of the bid, calling attention to the suspected mistake. If the bidder alleges a mistake, the matter shall be processed in the manner set forth below. Such actions shall be taken prior to award. §2.406-2 Apparent clerical mistakes. Any clerical mistake apparent on the face of a bid may be corrected by the contracting officer prior to award, if the contracting officer has first obtained from the bidder written or telegraphic verification of the bid actually intended. Examples of such apparent mistakes are: obvious error in placing decimal point; obvious discount errors (for example — 1 percent 10 days, 2 percent 20 days, 5 percent 30 days) ; obvious reversal of the price f.o.b. destination and the price f.o.b. factory; obvious error in designation of unit. Correction of the bid will be effected by attaching the verification to the original bid and a copy of the verification to the duplicate bid. Correction will not be made on the face of the bid;" } ]

[ { "docid": "8154120", "title": "", "text": "court. This does not matter, though, if two conditions are satisfied. The first is that the Age Discrimination in Employment Act have been enacted under a power granted by the Constitution to Congress to regulate the activities of the states, such as the power to regulate interstate commerce, Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 2286, 105 L.Ed.2d 1 (1989), or to enforce the prohibitions of the Fourteenth Amendment, Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). The Supreme Court has settled this point by holding that the amendment which extended the age discrimination act to state governments was a valid exercise of congressional power under the commerce clause, EEOC v. Wyoming, 460 U.S. 226, 243, 103 S.Ct. 1054, 1064, 75 L.Ed.2d 18 (1983), while leaving open the question, inessential given its holding, whether it is also a valid exercise of Congress’s power under section 5 of the Fourteenth Amendment — a question that we, at any rate, have answered “yes.” EEOC v. Elrod, 674 F.2d 601, 609 (7th Cir.1982); Heiar v. Crawford County, 746 F.2d 1190, 1193-94 (7th Cir.1984); see also Ramirez v. Puerto Rico Fire Service, 715 F.2d 694 (1st Cir.1983). The second condition that must be satisfied to lift the bar of the Eleventh Amendment is that Congress have made unmistakably clear in the Act that it wants the states to be liable for violating it. Atascadero State Hospital v. Scanlon, supra, 473 U.S. at 242, 105 S.Ct. at 3147; Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct. 2397, 2401, 105 L.Ed.2d 181 (1989). Whether this condition is satisfied is a question of first impression. The Act defines “employer” (the class of potential defendants in age discrimination cases) to include “a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a state,” 29 U.S.C. § 630(b), and is explicit that an employer who violates the Act is liable for legal and equitable relief. 29 U.S.C. §§ 626(b), (c). Unless Congress had said in" } ]

[ { "docid": "5551783", "title": "", "text": "29 U.S.C. § 202(b); see also United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941) (upholding the constitutionality of the FLSA as a valid exercise of Congress’s Commerce Clause powers). Moreover, when Congress amended the FLSA in 1963 by passing the Equal Pay Act, it explicitly stated that it was relying on its authority to regulate interstate commerce. See Pub.L. No. 8838, § 2(b), 77 Stat. 56, 56. This history would be unexceptional by itself, as it is consistent with Congress’s pattern of enacting civil rights statutes under the Commerce Clause to regulate private conduct, as mandated by the holding of the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), and later amending those statutes pursuant to its § 5 authority to encompass government conduct as well. See, e.g., Elrod, 674 F.2d at 606-08 (discussing this pattern with respect to Title VII and the ADEA). The University contends, however, that Congress made a similarly express statement that it was exercising its powers under the Commerce Clause when it extended the FLSA to the States through the Fair Labor Standards Amendments of 1974. According to the University’s argument, the Equal Pay Act is unlike the ADEA, in which Congress left the source of its power unstated when it extended the statute’s coverage to the States. See Goshtasby, 141 F.3d at 767. Therefore, the University argues, the inquiry mandated by Elrod — whether the objectives of the statute are within Congress’s § 5 powers — is simply inapplicable to this case. Rather, the University believes that we should take Congress at its word and definitively conclude that the 1974 amendments to the Equal Pay Act were enacted solely pursuant to its Commerce Clause powers. As an initial matter, we note that another court of appeals has rejected the premise that Congress explicitly relied upon its Commerce Clause powers when it extended the Equal Pay Act’s protections to the States. The Sixth Circuit, in addressing the identical question that is before us today, extensively analyzed the legislative history of the Fair Labor Standards" }, { "docid": "10547870", "title": "", "text": "in the private sector.” 120 Cong. Rec. S8,768 (1974). Giving these congressional findings the substantial deference that we must, see Coolbaugh, 136 F.3d at 435, we find that the legislative history of the ADEA supports Congress’s findings that discrimination on the basis of age presented a serious and common problem. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993) (“Congress’ promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes.”); EEOC v. Elrod, 674 F.2d 601, 604 (7th Cir.1982) (holding that the legislative history of the ADEA supports a conclusion that the purpose of the ADEA was “to prohibit arbitrary, discriminatory conduct that is the very essence of the guarantee of ‘equal protection of the laws’ of the Fourteenth Amendment”). The remaining part of our inquiry is “whether the scope of the [ADEA] is so ‘sweeping’ that the statute cannot be seen as proportional to the evil Congress sought to address.” Coolbaugh, 136 F.3d at 437. In Goshtasby, the Seventh Circuit summarized the scope of the ADEA as follows: The purpose of the ADEA is “to prohibit arbitrary age discrimination in employment.” The ADEA attempts to redress and prevent discrimination and stereotyping of older Americans by requiring that determinations be based on merit. See Hazen Paper Co., 507 U.S. at 611, 113 S.Ct. at 1706 (“The employer cannot rely on age as a proxy for an employee’s remaining characteristics, such as productivity, but must instead focus on those factors directly.”). Thus, the ADEA requires personalized determinations based on facts. If however, youth is a bona fide occupational qualification that is reasonably necessary to the normal operation of the particular business, an employer may use age as a criterion for employment decisions. ... The ADEA, as applied by the courts, ferrets out instances of arbitrary age discrimination. Goshtasby, 141 F.3d at 772 (citations omitted). As the Seventh Circuit opined, “unlike the statute at issue in Flores, which imposed ‘the most demanding test known to constitutional law,’ the" }, { "docid": "5551779", "title": "", "text": "to cover state employees. Although we recognized that the 1974 amendments to the ADEA did not explicitly refer to Congress’s § 5 powers, id. at 607-08, we did not believe that this fact was dispositive of our inquiry. Instead, we concluded that “the test of whether legislation is enacted pursuant to § 5 of the Fourteenth Amendment requires no talismanic intoning of the amendment. Rather, the inquiry is whether the objectives of the legislation are within Congress’ power under the amendment.” Id. at 608 (citation omitted). Because we concluded that the objectives of the 1974 amendments to the ADEA were “clearly tied to the guarantee of the Equal Protection clause of the Fourteenth Amendment,” we held that Congress acted pursuant to its § 5 enforcement powers when it extended the ADEA’s coverage to state and local government employees. See id. at 608-09. We recently have had two opportunities to consider Elrod’s rule, in Doe v. University of Illinois, 138 F.3d 653, 657-60 (7th Cir.1998), and in Goshtasby v. Board of Trustees of the University of Illinois, 141 F.3d 761, 766-68 (7th Cir.1998). In Doe, which considered the State of Illinois’s Eleventh Amendment challenge to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, we explicitly reaffirmed Elrod’s analysis, stating that “[t]he appropriate question is, were ‘the objectives of [Title IX] ... within Congress’ power’ ” under the Fourteenth Amendment. 138 F.3d at 660 (alterations in original) (quoting Elrod, 674 F.2d at 608). Similarly, Goshtasby, which like Elrod addressed the ADEA, reaffirmed our holding in Elrod, concluding that “the rule remains that Congress need not use magic words to exercise its enforcement power under § 5 of the Fourteenth Amendment.” 141 F.3d at 768. See also Doe, 138 F.3d at 678 (Easterbrook, J., respecting denial of rehearing en banc) (“Sex discrimination by public schools is a subject within the legislative power under § 5 of the fourteenth amendment, and Congress need not catalog the grants of power under which it legislates; courts do not remand statutes for better statements of reasons.”). Both Goshtasby and Doe also rejected the" }, { "docid": "7564710", "title": "", "text": "Equal Protection Clause requires. Cox, J., at 1447. In addition, Judge Cox asserts that “Congress did not enact the ADEA as a proportional response to any widespread violation of the elderly’s constitutional rights[,]” because, among other reasons, the legislative history accompanying the 1974 amendment to the ADEA did not mention the Constitution or constitutional violations. Cox, J., at 1444,1447. To the contrary, like many other circuit courts, I conclude that the ADEA falls squarely within the enforcement power that Section 5 of the Fourteenth Amendment confers on Congress. See Hurd, 109 F.3d at 1545-46; Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 699-700 (1st Cir.1983); EEOC v. Elrod, 674 F.2d 601, 608-09 (7th Cir.1982); Arritt v. Grisell, 567 F.2d 1267, 1270-71 (4th Cir.1977). Congress enacted the ADEA to remedy and prevent what it found to be a pervasive problem of arbitrary discrimination against older workers. Such protection is at the core of the Fourteenth Amendment’s guarantee of equal protection under the law. Even though Congress arguably has gone further in proscribing government employment practices that discriminate on the basis of age than have the courts in adjudicating claims under the Fourteenth Amendment, this merely reflects the differing roles of Congress and the courts. 1. Congress enacted the ADEA to “enforce” rights under the Equal Protection Clause of the Fourteenth Amendment. In Boerne, Congress legislated a constitutional standard of review for the judiciary. Contrary to Judge Cox’s assertions, I do not find this to be the case under the ADEA. In general, the Equal Protection Clause proscribes states from treating similarly situated persons within their jurisdictions differently and assures that governments will differentiate between their citizens only upon reasonable grounds that have a relationship to the desired goals. See, e.g., Romer v. Evans, 517 U.S. 620, 630-32, 116 S.Ct. 1620, 1627-28, 134 L.Ed.2d 855, 865-67 (1996); Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 2331, 120 L.Ed.2d 1 (1992); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446, 105 S.Ct. 3249, 3257, 87 L.Ed.2d 313 (1985) (“The State may not rely on a classification whose" }, { "docid": "2777699", "title": "", "text": "the Equal Pay Act does not contain an unmistakable expression of Congress' intent to abrogate States’ Eleventh Amendment rights. . Although the defendants do not renew their argument that the Fair Labor Standards Act (\"FLSA”), 29 U.S.C. § 201 et seq., which contains the Equal Pay Act, was an invalid attempt to abrogate the States’ sovereign immunity under the Commerce Clause, we want to reaffirm our original holding rejecting that claim. Although Congress explicitly stated that the FLSA constituted an exercise of congressional power under the Commerce Clause, see 29 U.S.C. § 202(b), we do not believe that Congress expressly relied on its Commerce Clause power when it extended the FLSA, and consequently the Equal Pay Act, to the States, see Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833, 838-39 n. 7 (6th Cir.1997) (\"We believe that th[e] legislative history [of the Equal Pay Act] falls far short of constituting an ‘express statement' of congressional intent.”), or that any reliance on its commerce power was intended to be exclusive, see Mills v. Maine, 118 F.3d 37, 44 (1st Cir.1997) (\"[0]ne cannot-read Congress’ statement regarding the [Equal Pay] Act’s validity under the Commerce Clause to indicate that Congress intended to exclude other applicable constitutional bases for the Act.”) (quotations and alteration omitted). Because we remain unconvinced that Congress clearly expressed an intention to proceed under its commerce power when it applied the Equal Pay Act to the States, the key \"inquiry is whether the objectives of the legislation are within Congress' power under [§ of the Fourteenth Amendment].” EEOC v. Elrod, 674 F.2d 601, 608 (7th Cir.1982). Under this standard, it is not difficult to conclude that the objectives of the Equal Pay Act are within Congress’ powers under the Fourteenth Amendment. The purpose of the Equal Pay Act is to prevent arbitrary gender based wage disparities, while prohibiting \"arbitrary, discriminatory government conduct ... is the very essence of the guarantee of 'equal protection of the laws’ of the Fourteenth Amendment.” Id. at 604. We thus conclude that the Equal Pay Act’s prohibition on discrimination fits within the objectives of" }, { "docid": "16479564", "title": "", "text": "oversight. But we do not have enough confidence that this is so to justify our making the exception ourselves when we have no statutory handle or any clue in the legislative history (the only clue— the judicial interpretation of the Rehabilitation Act at the time the ADA was passed— cuts against creating the exception) that might enable us to exercise a creativity fairly describable as interpretive rather than legislative. What we have said scotches the state’s argument that the suit is barred by the Eleventh Amendment. Like the other antidiscrimination statutes, the Americans with Disabilities Act is an exercise of Congress’s power under section 5 of the Fourteenth Amendment (as well as under the commerce clause, which is not excepted from the Eleventh Amendment) to enact legislation designed to enforce and bolster the substantive provisions of the amendment, in this case the equal protection clause. 42 U.S.C. §§ 12101(a)(7), (b)(4). The Eleventh Amendment does not insulate the states from suits in federal courts to enforce federal statutes enacted under the authority of the Fourteenth Amendment. Seminole Tribe of Florida v. Florida, supra, — U.S. at -, 116 S.Ct. at 1125; Fitzpatrick v. Bitzer, 427 U.S. 445, 453, 456, 96 S.Ct. 2666, 2670, 2671, 49 L.Ed.2d 614 (1976). Although the state argues that the ADA is outside the scope of section 5, that argument is refuted by our earlier discussion of Congress’s concern that disabled persons are victims of discrimination. Invidious discrimination by governmental agencies, such as Indiana’s prison system, violates the equal protection clause even if the discrimination is not racial, though racial discrimination was the original focus of the clause. In creating a remedy against such discrimination, Congress was acting well within its powers under section 5, as the courts have concluded with respect to the Age Discrimination in Employment Act, which is similar to the ADA in forbidding a form of discrimination remote from the contemplation of the framers of the Fourteenth Amendment. EEOC v. County of Calumet, 686 F.2d 1249, 1251-52 (7th Cir.1982); EEOC v. Elrod, 674 F.2d 601, 603-09 (7th Cir.1982); Ramirez v. Puerto Rico Fire" }, { "docid": "5551778", "title": "", "text": "as we have discussed, see supra at 708-709, Seminole Tribe established that Congress may only abrogate the States’ Eleventh Amendment immunity through legislation validly enacted pursuant to its § 5 enforcement powers. Because we must determine whether “the Act in question [was] passed pursuant to a constitutional provision granting Congress the power to abrogate,” Seminole Tribe, 517 U.S. at 59, 116 S.Ct. 1114, we therefore are required to consider two questions: (1) whether Congress, in applying the Equal Pay Act to the States, did so pursuant to its § 5 powers and, if so, (2) whether the Equal Pay Act is within Congress’s § 5 powers, as inter preted by the Supreme Court in City of Boerne v. Flores, — U.S. —, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). 1. Whether Congress Exercised its § 5 Powers in Making the Equal Pay Act Applicable to the States In EEOC v. Elrod, 674 F.2d 601, 604-09 (7th Cir.1982), we considered whether Congress had employed its § 5 enforcement powers when it amended the ADEA in 1974 to cover state employees. Although we recognized that the 1974 amendments to the ADEA did not explicitly refer to Congress’s § 5 powers, id. at 607-08, we did not believe that this fact was dispositive of our inquiry. Instead, we concluded that “the test of whether legislation is enacted pursuant to § 5 of the Fourteenth Amendment requires no talismanic intoning of the amendment. Rather, the inquiry is whether the objectives of the legislation are within Congress’ power under the amendment.” Id. at 608 (citation omitted). Because we concluded that the objectives of the 1974 amendments to the ADEA were “clearly tied to the guarantee of the Equal Protection clause of the Fourteenth Amendment,” we held that Congress acted pursuant to its § 5 enforcement powers when it extended the ADEA’s coverage to state and local government employees. See id. at 608-09. We recently have had two opportunities to consider Elrod’s rule, in Doe v. University of Illinois, 138 F.3d 653, 657-60 (7th Cir.1998), and in Goshtasby v. Board of Trustees of the University of" }, { "docid": "16131650", "title": "", "text": "at 2402 (dictum)). Other decisions cited by Humenansky reach results similar to Hurd and Davidson. See Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 701 (1st Cir.1983); EEOC v. Elrod, 674 F.2d 601, 605 (7th Cir.1982). However, these cases were decided before the Supreme Court’s strict tests for abrogating Eleventh Amendment immunity were enunciated in Atascadero and Dellmuth. While the Court believes that the reasoning of Hurd and Davidson courts has considerable force, the Court cannot find a principled distinction between the language used in the ADEA amendments and that held ineffective to abrogate States’ immunity in Dellmuth. It is certainly a reasonable inference that Congress intended to abrogate that immunity by its inclusion of states in its definition of employers. However, there is no discussion of the Eleventh Amendment or sovereign immunity. As the Supreme Court indicated, inferences are insufficient to support a finding that abrogation was intended. See Dellmuth, 491 U.S. at 231, 109 S.Ct. at 2402. The ADEA lacks the “unequivocal declaration” deemed necessary. Even if Congress has expressed its unequivocal desire to abrogate the States’ Eleventh Amendment immunity, the Court is skeptical whether Congress intended to enact the ADEA pursuant to the Fourteenth Amendment. In Seminole, the Supreme Court held that the Commerce Clause was not valid authority for abrogating Eleventh Amendment immunity. — U.S. at -, 116 S.Ct. at 1124. The Court held that the Fourteenth Amendment was the only constitutional provision which gave authority to Congress to legislate over the States’ immunity. Id. In the present ease, the authority for Congress’s action is at best unclear. Humenansky argues that the Court should view the amendments to the ADEA in light of the 1972 amendments to Title VII, which, according to Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), where enacted pursuant to the Fourteenth Amendment. The Court finds the analogy to Title VII unpersuasive. The 1972 amendments to Title VII were adopted explicitly under the authority of the Fourteenth Amendment. Like the Croger court, this Court finds it telling that the 1974 ADEA amendments failed to mention the" }, { "docid": "7866324", "title": "", "text": "Cir.); Scott, 148 F.3d at 500-03 (5th Cir.); Keeton, 150 F.3d at 1057-58 (9th Cir.); Goshtasby, 141 F.3d at 768 (7th Cir.); Hurd, 109 F.3d at 1544-46 (10th Cir.); Blanciak, 77 F.3d at 695 (3rd Cir.); Ramirez, 715 F.2d at 700 (1st Cir.). Appellants make a number of arguments that require only brief response. They point out that the ADEA does not contain any reference to § 5 of the Fourteenth Amendment in the body of the statute or in the legislative history of the original act or the 1974 amendments. However, the failure of Congress to use the words “section 5” or “Fourteenth Amendment” or “equal protection” is not controlling. EEOC v. Wyoming, 460 U.S. 226, 243 n. 18, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983). As long as Congress could have enacted the ADEA pursuant to § 5, Congress need not have declared its source of power. Fullilove v. Klutznick, 448 U.S. 448, 476-78, 100 S.Ct. 2758, 65.L.Ed.2d 902 (1980); EEOC v. Elrod, 674 F.2d 601, 608-09 (7th Cir.1982). Appellants also argue that even if Congress intended to act pursuant to § 5 in enacting the 1974 amendments, it lacked the power to do so because the statute involves neither a fundamental right nor a suspect classification. We agree with those courts that have held that Congress has the power to prohibit arbitrary age-based discrimination even though age is not a suspect classification and no fundamental right is involved. See, e,g., Scott, 148 F.3d at 501; Goshtasby, 141 F.3d at 770 (“The fact that age is not a suspect classification does not foreclose Congress from enforcing the Equal Protection Clause through an enactment protecting against arbitrary and invidious age discrimination.”). Finally, appellants argue that the ADEA is substantive, rather than remedial, legislation and as such exceeds Congress’s power to legislate according to the standards articulated in City of Boeme. In order to qualify as remedial legislation under those standards, “[t]here must be a congruence and proportionality between the injury prevented or remedied and the means adopted to that end.” 521 U.S. at-, 117 S.Ct. at 2164. We agree" }, { "docid": "5551782", "title": "", "text": "Equal Pay Act’s] substantive provisions) is clear, and the grant of power under which Congress acted is at issue.” Doe, 138 F.3d at 658. We therefore continue to adhere to the method of analysis set forth in Elrod, which is consistent with the long-recognized rule that “the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.” Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144, 68 S.Ct. 421, 92 L.Ed. 596 (1948); see also EEOC v. Wyoming, 460 U.S. 226, 243 n. 18, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983) (recognizing that “Congress need [not] anywhere recite the words ‘section 5’ or ‘Fourteenth Amendment’ or ‘Equal Protection’ ” in order to exercise its § 5 powers). The Equal Pay Act, however, presents an additional wrinkle that prevents us from proceeding immediately to consider whether the objectives of the Act are within Congress’s § 5 powers. The FLSA as originally enacted explicitly stated that the statute constitutes an exercise of Congress’s Commerce Clause powers. See 29 U.S.C. § 202(b); see also United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941) (upholding the constitutionality of the FLSA as a valid exercise of Congress’s Commerce Clause powers). Moreover, when Congress amended the FLSA in 1963 by passing the Equal Pay Act, it explicitly stated that it was relying on its authority to regulate interstate commerce. See Pub.L. No. 8838, § 2(b), 77 Stat. 56, 56. This history would be unexceptional by itself, as it is consistent with Congress’s pattern of enacting civil rights statutes under the Commerce Clause to regulate private conduct, as mandated by the holding of the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), and later amending those statutes pursuant to its § 5 authority to encompass government conduct as well. See, e.g., Elrod, 674 F.2d at 606-08 (discussing this pattern with respect to Title VII and the ADEA). The University contends, however, that Congress made a similarly express statement that it was exercising its powers under the Commerce" }, { "docid": "5551787", "title": "", "text": "to this analysis, we have little difficulty in concluding that the objectives of the Equal Pay Act were within Congress’s powers under the Fourteenth Amendment. As we have discussed, see supra at 709 & n. 3, the purpose of the Equal Pay Act is to prohibit arbitrary sex-based wage disparities. Prohibiting “arbitrary, discriminatory government conduct ... is the very essence of the guarantee of ‘equal protection of the laws’ of the Fourteenth Amendment.” Elrod, 674 F.2d at 604. Thus, we conclude that the Equal Pay Act constitutes an exercise of Congress’s § 5 enforcement powers. 2. Whether The Equal Pay Act is Within Congress’s § 5 Enforcement Powers The University argues that Congress exceeded its power to enforce the Fourteenth Amendment when it extended the protections of the Equal Pay Act to the States. In this context, the University relies on the fact that the Equal Pay Act does not require proof of an employer’s discriminatory purpose. See Fallon v. Illinois, 882 F.2d 1206, 1213 (7th Cir.1989) (recognizing that “the Equal Pay Act creates a type of strict liability in that no intent to discriminate need be shown”) (quotation omitted); see also Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 118 (2d Cir.1997). Because claims of discrimination under the Fourteenth Amendment. require proof of purposeful discrimination, see, e.g., Personnel Adm’r v. Feeney, 442 U.S. 256, 274, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), the University contends that the Equal Pay Act is not within Congress’s power “to enforce, by appropriate legislation, the provisions” of the Fourteenth Amendment. U.S. Const. amend. XIV, § 5. We previously have addressed similar challenges to Title VIPs imposition of disparate impact liability. See Liberles v. County of Cook, 709 F.2d 1122, 1135 (7th Cir.1983); United States v. City of Chicago, 573 F.2d 416, 422-24 (7th Cir.1978). We rejected those challenges, holding that the prohibition of policies that had a discriminatory impact was “plainly adapted” to the end of “enforc[ing] the anti-discrimination provisions of the Equal Protection Clause.” Id. at 423. The University argues, however, that the Supreme Court’s holding in City of Boerne" }, { "docid": "7564709", "title": "", "text": "not enforcing rights under the Fourteenth Amendment, which it undeniably has the power to do, but was attempting to create rights that the Constitution did not guarantee. See Boerne, — U.S. at -, 117 S.Ct. at 2170, 138 L.Ed.2d at 646. In other words, Congress had imper-missibly enacted “substantive” legislation. Judge Cox states that ‘Boerne and the Voting Rights Act eases teach us [that] [o]nly by respecting Supreme Court interpretations of the Fourteenth Amendment can Congress avoid impermissibly interpreting the Amendment itself.” Cox, J., at 1445.1 interpret his analysis to limit, in an unallowable manner, the power of Congress and thus, disagree. A. The ADEA Judge Cox asserts that the ADEA was not a proper exercise of Congress’s Section 5 power under the Boerne analysis for two main reasons. First, he alleges that the statute confers more extensive rights to individuals than does the Equal Protection Clause of the Fourteenth Amendment. In essence, Judge Cox alleges that the ADEA puts “mandatory retirement ages” and “mandatory age limits” to a much more rigorous test than the Equal Protection Clause requires. Cox, J., at 1447. In addition, Judge Cox asserts that “Congress did not enact the ADEA as a proportional response to any widespread violation of the elderly’s constitutional rights[,]” because, among other reasons, the legislative history accompanying the 1974 amendment to the ADEA did not mention the Constitution or constitutional violations. Cox, J., at 1444,1447. To the contrary, like many other circuit courts, I conclude that the ADEA falls squarely within the enforcement power that Section 5 of the Fourteenth Amendment confers on Congress. See Hurd, 109 F.3d at 1545-46; Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 699-700 (1st Cir.1983); EEOC v. Elrod, 674 F.2d 601, 608-09 (7th Cir.1982); Arritt v. Grisell, 567 F.2d 1267, 1270-71 (4th Cir.1977). Congress enacted the ADEA to remedy and prevent what it found to be a pervasive problem of arbitrary discrimination against older workers. Such protection is at the core of the Fourteenth Amendment’s guarantee of equal protection under the law. Even though Congress arguably has gone further in proscribing government employment practices" }, { "docid": "7564721", "title": "", "text": "sector.” Elrod, 674 F.2d at 605 (quoting 120 Cong. Rec. 8768 (1974)). In light of the above, I conclude that the ADEA qualifies as a valid enforcement provision under Congress’s Section 5 power. The text and history of the ADEA demonstrate a congressional focus, including extensive fact-finding on arbitrary age discrimination, and its resulting harm, in the employment practices of private and public employers — discrimination that had become a “common practice” and was often unrelated to legitimate employment goals. See 29 U.S.C. § 621 (1994). “[I]t is clear that the purpose of the [1974 amendment to the ADEA] was to prohibit arbitrary, discriminatory government conduct that is the very essence of the guarantee of ‘equal protection of the laws’ of the Fourteenth Amendment.” Elrod, 674 F.2d at 604; see also Ramirez, 715 F.2d at 699 (stating that Congress extended ADEA coverage “to shield public employees from the invidious effects of age-based discrimination. The 1974 amendment, like the ADEA itself, ‘is aimed at irrational, unjustified employment decisions based upon assumptions about the relationship between age and ability which classify older workers as incapable of effective job performance.’ ”) (quoting El-rod, 674 F.2d at 605). B. The ADA With respect to the ADA, Judge Cox states that the statute is not valid enforcement legislation for the same reasons that he rejected the ADEA. First, he asserts that because the disabled are not a suspect or quasi-suspect class, and thus enjoy no special rights under the Equal Protection Clause, the ADA provides them with greater protection than does the Equal Protection Clause. His second reason is that the ADA “was unaccompanied by any finding that widespread violation of the disabled’s constitutional rights required the creation of prophylactic remedies].,]” and states that “[a]ltruistic and economic ■ concerns motivated [the ADA] — not defense of the Constitution.” Cox, J., at 1448. For reasons similar to my analysis of the ADEA, I disagree. As an initial matter, I acknowledge that, unlike in the ADEA, Congress explicitly invoked its enforcement power under the Fourteenth Amendment in the ADA. See 42 U.S.C. § 12101(b)(4) (1994) (“It is" }, { "docid": "5551805", "title": "", "text": "is whether Wisconsin has waived its Eleventh Amendment immunity from suit in federal court under the FLSA” and citing Mills, Raper, and Wilson-Jones). Three of these courts, though, expressly reserved the question of whether the Equal Pay Act validly serves a Fourteenth Amendment purpose. See Mills, 118 F.3d at 48; Aaron, 115 F.3d at 817; Raper, 115 F.3d at 624. Moreover, the Sixth Circuit, in holding that the Equal Pay Act validly abrogates the States' Eleventh Amendment immunity, noted that its holding was not in tension with its contrary holding in Wilson-Jones. See Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833, 842 (6th Cir.1997). . These amendments to the ADEA, Pub.L. No. 93-259, 88 Slat. 74, were in fact included in the Fair Labor Standards Amendments of 1974—the same legislation that amended the FLSA. See Elrod, 674 F.2d at 605. . As our analysis in Elrod made clear, we must focus upon the particular legislation that extended a statute’s coverage to the States, as opposed to the original statute itself, when determining the source of Congress's power. See Elrod, 674 F.2d at 604-08 (considering the 1974 amendments to the ADEA, as opposed to the original legislation enacted in 1967). Accord, e.g., Mills v. Maine, 118 F.3d 37, 43 (1st Cir.1997) (considering the 1974 amendments to the FLSA as opposed to the original legislation); Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833, 838 n. 7 (6th Cir.1997) (\"[T]he court properly focused on the 1974 amendments as opposed to the 1963 version of the Equal Pay Act. Although the 1974 legislation was an amendment to an already existing act, it was nevertheless a separate act of Congress.”). . The report states, in part: The Committee believes that there is no doubt that the activities of public sector employers affect interstate commerce and therefore that the Congress may regulate them pursuant to its power to regulate interstate commerce. Without question, the activities of government at all levels affect commerce. S.Rep. No. 93-690, 93d Cong., 2d Sess. 24 (1974). See also H.R.Rep. No. 93-913, 93d Cong., 2d Sess. 2 (1974) (\"It is" }, { "docid": "6877833", "title": "", "text": "suit. Seminole Tribe, 517 U.S. at 57, 116 S.Ct. 1114 (concluding that “the numerous references to the ‘State’ in the text of [the statute] make it indubitable that Congress intended through the Act to abrogate the States’ sovereign immunity from suit.”). When Congress enacted the ADEA in 1967, the Act applied only to private employers. EEOC v. Elrod., 674 F.2d 601, 605-06 (7th Cir.1982). In 1974, Congress expanded the ADEA’s definition of “emplpyer” to include “a State or political subdivision of a State and any agency or instrumentality of a State.” Pub.L. No. 93-259, § 28(a)(2), 88 Stat. 74, codified at 29 U.S.C. § 630(b)(2). Congress also amended the definition of “employee” to include employees subject to the civil service laws of a State government. Id., § 28(a)(4), 88 Stat. 74, codified at 29 U.S.C. § 630(f). The direct textual references to “state” — state, political subdivision of a state, agency of a state, instrumentality of a state, and state government — in the 1974 amendment to the ADEA clearly expressed Congress’ intent to abrogate states’ sovereign immunity. Cf. Seminole Tribe, 517 U.S. at 57, 116 S.Ct. 1114. Under the Seminole Tribe test the second inquiry is whether Congress has acted “pursuant to a valid exercise of power” under the Fourteenth Amendment. Id. at 55, 116 S.Ct. 1114. The Supreme Court has declared that “ § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.” Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). Although the 1974 amendment does not explicitly refer to the Fourteenth Amendment, there is no require ment that it do so. EEOC v. Wyoming, 460 U.S. at 243 n. 18, 103 S.Ct. 1054 (declaring congress .need not “anywhere recite the words 'section 5’ of the 'Fourteenth Amendment’ or ‘equal protection’... ‘for the constitutionality of action taken by Congress does not depend on recitals of the power which- it undertakes to exercise’ ”) (quoting Woods v. Cloyd W. Miller Co., 333" }, { "docid": "7564739", "title": "", "text": "501 U.S. at 470-71, 111 S.Ct. at 2405-06. . At issue in Murgia was the constitutionality under the Equal Protection Clause of a state statute mandating a retirement age for state police officers. See 427 U.S. at 308, 96 S.Ct at 2563. . The amendments to the FLSA that, among other things, extended that statute to federal, state and local government employees — and with which Congress passed the 1974 ADEA amendment-overshadowed the ADEA. The House and Senate considered the ADEA amendment to be \"a logical extension of the Committee’s decision to extend FLSA coverage to Federal, State, and local government employees.” Elrod, 674 F.2d at 605 (internal quotation marks omitted). Even in light of this and the Supreme Court’s concluding that Congress passed the ADEA pursuant to its power under the Commerce Clause, my determination that Congress also was exercising its power under Section 5 of the Fourteenth Amendment in enacting the ADEA is not precluded. See Wyoming, 460 U.S. at 243, 103 S.Ct. at 1064 (\"The extension of the ADEA to cover state and local governments, both on its face and as applied in this case, was a valid exercise of Congress’ powers under the Commerce Clause. We need not decide whether it could also be upheld as an exercise of Congress' powers under § 5 of the Fourteenth Amendment.”) (emphasis added); Hurd, 109 F.3d at 1546 (concluding, after Wyoming, that \"Congress acted pursuant to its powers under the Fourteenth Amendment when it applied the ADEA to the states”); Ramirez, 715 F.2d at 700 (holding postWyoming that Congress adopted the 1974 ADEA amendment pursuant to its Section 5 power). . In addition, included in the legislative history of the 1978 ADEA amendments is a statement from Representative Paul Findley further supporting the view that Congress’s legislation in the ADEA was part of its general policy to ensure equal employment opportunities. Representative Findley stated that \"depriving older and still capable Americans of jobs [does not] make any more sense than discriminating in employment against blacks, women, or religious or ethnic minorities.” Elrod, 674 F.2d at 606 (quoting H.R.Rep. No." }, { "docid": "21124923", "title": "", "text": "section five of the Fourteenth Amendment. Aplee.’s Supp. Br. at 15; Seminole Tribe, — U.S. at -, 116 S.Ct. at 1125; Timmer, 104 F.3d 833, 838 (noting that, after the issuance of Seminole Tribe, “[section five] of the Fourteenth Amendment remains a provision that vests Congress with the power to abrogate Eleventh Amendment immunity”). Instead, PSU asserts that the 1974 amendments to the ADEA were enacted pursuant to the Com meree Clause not the Fourteenth Amendment. Aplee.’s Supp. Br. at 15. Because we did not specifically state in Hurd II that we were approving the district court’s reliance on the Fourteenth Amendment, and because at the time of our affirmance congressional authority under either the Commerce Clause or the Fourteenth Amendment would have been sufficient to uphold the district court, PSU argues we should reconsider the issue. Prior to Seminole Tribe, the Supreme Court upheld the general applicability of the ADEA to the states by concluding that Congress had exercised its Commerce Clause power in enacting the ADEA. EEOC v. Wyoming, 460 U.S. 226, 243, 103 S.Ct. 1054, 1064, 75 L.Ed.2d 18 (1983) (finding the exercise of this power did not infringe the state’s implied Tenth Amendment immunity). The Court chose not to decide whether Congress in passing the 1974 ADEA amendments had also acted pursuant to its Fourteenth Amendment power. Id. & n. 18. Nonetheless, those circuit courts which have considered the issue have uniformly concluded the 1974 amendments to the ADEA were enacted pursuant to section five of the Fourteenth Amendment. Davidson v. Board of Governors, 920 F.2d 441, 443 (7th Cir.1990); Heiar v. Crawford County, 746 F.2d 1190, 1194 (7th Cir.1984); EEOC v. Elrod, 674 F.2d 601, 603 (7th Cir.1982); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 699-700 (1st Cir.1983) (legislative history of act makes clear Congress’ intent to enact 1974 amendments pursuant to Fourteenth Amendment authority); Arritt v. Grisell, 567 F.2d 1267, 1270-71 (4th Cir.1977) (legislative history makes enactment pursuant to Fourteenth Amendment authority clear); Santiago v. New York State Dept. of Correctional Servs., 945 F.2d 25, 31 (2d Cir.1991) (dicta). PSU suggests that" }, { "docid": "5551786", "title": "", "text": "F.3d at 846 n. 2 (Boggs, J., dissenting) (“The items debated were primarily the minimum wage and overtime provisions.”); cf. Elrod, 674 F.2d at 605 (noting that “[l]ittle legislative history exists on the ADEA amendment, ... because the breadth and significance of the amendments to the FLSA overshadowed the ADEA amendment”). Thus, we do not accept the University’s contention, which is solely based upon a murky legislative history, that Congress expressly relied upon its Commerce Clause powers in extending the Equal Pay Act to the States. Accord Mills, 118 F.3d at 44 (“[0]ne cannot read Congress’ statement regarding the Act’s validity under the Commerce Clause to indicate that Congress intended to exclude other applicable constitutional bases for the Act.”) (quotations and alteration omitted); Timmer, 104 F.3d at 838-39 n. 7 (“We believe that this legislative history falls far short of an ‘express statement’ of congressional intent.”). Because we are unconvinced that Congress expressly declared its intention to proceed solely pursuant to its Commerce Clause powers, we conclude that Elrod’s analysis controls the present inquiry. Pursuant to this analysis, we have little difficulty in concluding that the objectives of the Equal Pay Act were within Congress’s powers under the Fourteenth Amendment. As we have discussed, see supra at 709 & n. 3, the purpose of the Equal Pay Act is to prohibit arbitrary sex-based wage disparities. Prohibiting “arbitrary, discriminatory government conduct ... is the very essence of the guarantee of ‘equal protection of the laws’ of the Fourteenth Amendment.” Elrod, 674 F.2d at 604. Thus, we conclude that the Equal Pay Act constitutes an exercise of Congress’s § 5 enforcement powers. 2. Whether The Equal Pay Act is Within Congress’s § 5 Enforcement Powers The University argues that Congress exceeded its power to enforce the Fourteenth Amendment when it extended the protections of the Equal Pay Act to the States. In this context, the University relies on the fact that the Equal Pay Act does not require proof of an employer’s discriminatory purpose. See Fallon v. Illinois, 882 F.2d 1206, 1213 (7th Cir.1989) (recognizing that “the Equal Pay Act creates a" }, { "docid": "21124924", "title": "", "text": "103 S.Ct. 1054, 1064, 75 L.Ed.2d 18 (1983) (finding the exercise of this power did not infringe the state’s implied Tenth Amendment immunity). The Court chose not to decide whether Congress in passing the 1974 ADEA amendments had also acted pursuant to its Fourteenth Amendment power. Id. & n. 18. Nonetheless, those circuit courts which have considered the issue have uniformly concluded the 1974 amendments to the ADEA were enacted pursuant to section five of the Fourteenth Amendment. Davidson v. Board of Governors, 920 F.2d 441, 443 (7th Cir.1990); Heiar v. Crawford County, 746 F.2d 1190, 1194 (7th Cir.1984); EEOC v. Elrod, 674 F.2d 601, 603 (7th Cir.1982); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 699-700 (1st Cir.1983) (legislative history of act makes clear Congress’ intent to enact 1974 amendments pursuant to Fourteenth Amendment authority); Arritt v. Grisell, 567 F.2d 1267, 1270-71 (4th Cir.1977) (legislative history makes enactment pursuant to Fourteenth Amendment authority clear); Santiago v. New York State Dept. of Correctional Servs., 945 F.2d 25, 31 (2d Cir.1991) (dicta). PSU suggests that the failure of these courts to utilize the Seminole Tribe two-part test renders their conclusions on congressional power, and our reliance on those conclusions, inapposite. We are not persuaded. Although Seminole Tribe requires courts to ascertain that Congress exercised valid legislative authority, Seminole Tribe articulates no particular method for determining the source of that authority. Timmer, 104 F.3d at 841-42 (“Seminole Tribe says nothing about the situation presented here where there is a question about whether Congress legislated pursuant to an unstated Constitutional provision.”). The only recent guidance the Court has offered on determining which of Congress’ powers it utilized in attempting to abrogate state sovereign immunity was in dicta, some five years before the issuance of Seminole Tribe. Gregory, 501 U.S. at 469-70, 111 S.Ct. at 2405-06 (denying applicability of ADEA to state judges after concluding that Congress’ intent to include these employees was not clearly enough stated regardless of whether the authority to abrogate derived from the Commerce Clause or Fourteenth Amendment power). The Court stated “ “we should not quickly attribute to" }, { "docid": "2777700", "title": "", "text": "F.3d 37, 44 (1st Cir.1997) (\"[0]ne cannot-read Congress’ statement regarding the [Equal Pay] Act’s validity under the Commerce Clause to indicate that Congress intended to exclude other applicable constitutional bases for the Act.”) (quotations and alteration omitted). Because we remain unconvinced that Congress clearly expressed an intention to proceed under its commerce power when it applied the Equal Pay Act to the States, the key \"inquiry is whether the objectives of the legislation are within Congress' power under [§ of the Fourteenth Amendment].” EEOC v. Elrod, 674 F.2d 601, 608 (7th Cir.1982). Under this standard, it is not difficult to conclude that the objectives of the Equal Pay Act are within Congress’ powers under the Fourteenth Amendment. The purpose of the Equal Pay Act is to prevent arbitrary gender based wage disparities, while prohibiting \"arbitrary, discriminatory government conduct ... is the very essence of the guarantee of 'equal protection of the laws’ of the Fourteenth Amendment.” Id. at 604. We thus conclude that the Equal Pay Act’s prohibition on discrimination fits within the objectives of § 5 of the Fourteenth Amendment, and that the Act is an exercise of congressional power under § 5. This does not mean, however, that Congress' action in subjecting state employers to the Equal Pay Act was a valid exercise of its authority under § 5, a subject which is addressed infra. . Although the Equal Pay Act constitutes a separate act of Congress, it was originally enacted in 1963 as an amendment to the FLSA. In 1974, the Equal Pay Act was applied to the States by virtue of an amendment extending the protections of the FLSA to state employees. . In so holding, we join the other Circuits who have considered this issue in the context of the Equal Pay Act. See Kovacevich v. Kent St. Univ., 224 F.3d 806 (6th Cir.2000); Hundertmark v. Florida Dep’t of Transp., 205 F.3d 1272 (11th Cir.2000); O'Sullivan v. Minnesota, 191 F.3d 965 (8th Cir.1999); Ussery v. Louisiana, 150 F.3d 431 (5th Cir.1998), cert. dismissed, 526 U.S. 1013, 119 S.Ct. 1161, 143 L.Ed.2d 225 (1999); Timmer v." } ]

[ { "docid": "5710973", "title": "", "text": "fair trial, especially since the case was a short one in which all of the prosecutorial misconduct took place in one day, see United States v. White, 486 F.2d 204, 206 (2d Cir. 1973), and since the prosecutor’s improper comments in summation were not in response to any contentions of the defense, cf. United States v. Santana, 485 F.2d 365, 370-71 (2d Cir. 1973); United States v. LaSorsa, 480 F.2d 522, 526 (2d Cir. 1973). Moreover, the court is convinced that the prosecutor’s summation was “part of a broader scheme to inflame the jury against [petitioner],” United States v. Miller, 478 F.2d 1315, 1317 (2d Cir. 1973). In addition, the fact that no curative instructions were given, either at the time of the improper conduct or in the judge’s charge to the jury, cf. United States v. Miller, supra, United States v. Pfingst, 477 F.2d 177, 189 (2d Cir. 1973), rendered the prejudice to petitioner even more severe than it otherwise might have been. Having determined that the prosecutor’s conduct in the State trial was improper and prejudicial to petitioner, the court must still determine whether petitioner’s claim is cognizable under this court’s habeas corpus jurisdiction. The court agrees with respondent that not every error in a trial constitutes a denial of a constitutional right re viewable in the context of a federal habeas corpus proceeding. Before an error will be so reviewable it must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). See also Castillo v. Fay, 350 F.2d 400 (2d Cir. 1965). In De-Christoforo, two remarks in the prosecutor’s summation were challenged as having deprived the defendant of a fair trial. The Supreme Court found that if the statements were improper, setting aside the conviction was not required since the prosecutor’s comments were “admittedly . . . ambiguous . . . , [were] but one moment in an extended trial and [were] followed by specific disapproving instructions.” 416 U.S. at 645, 94 S.Ct." } ]

[ { "docid": "12246205", "title": "", "text": "was perfectly proper and in accordance with the Government’s theory that this corporation was a “front” and the core of the smuggling operation. The prosecutor was entitled to marshal all the inferences which the evidence supported. United States v. White, 486 F.2d 204 (2d Cir. 1973), cert. denied, 415 U.S. 980, 94 S.Ct. 1569, 39 L.Ed.2d 876 (1974). The proof established the illegal importation of almost a ton of marijuana in the space of a few months. With this background, it was not improper for the prosecutor to refer to the “problems of drugs” and the fact that there was a “lot of marijuana” involved. United States v. Ramos, 268 F.2d 878 (2d Cir. 1959). The District Judge carefully observed for the record that the prosecutor’s comments were made in a “very calm, dispassionate tone”. A substantial portion of the defense summations was devoted to an attack upon the Government witnesses, Thur-low, Mitchell and Palmer. The contention was repeatedly made that these men were escaping prosecution and sentence because of their aid to the Government. Undoubtedly, it was this attack that prompted the prosecutor to point out that these men had served their time and that, if defendants were acquitted, “they’ll be laughing all the way to Williams Island”. A prosecuting attorney is not an automaton whose role on summation is limited to parroting facts already before the jury. He is an advocate who is expected to prosecute diligently and vigorously, albeit without appeal to prejudice or passion. His task is not rendered easy by the “no holds barred” tactics indulged in by all too many defense counsel in recent years. Although we intend no criticism of defense counsel in the instant case, we believe that their heated attacks upon the Government’s witnesses justified some sort of response. The prosecutor’s further comment about the merriment which would result from an acquittal was a statement of the obvious. It constituted one paragraph of a 30 page summation made without objection at the conclusion of a 14 day trial. We see no prejudicial error. THE SECOND TRIAL Since the defendant Mecca actively" }, { "docid": "20811782", "title": "", "text": "prosecutor of improperly denigrating the defense case. First, the petitioner objects to comments about the defense witnesses’ credibility and to insinuations that they had lied. This claim cannot be sustained. Although the Court of Appeals has recognized that some comments on the credibility of defense witnesses may be so prejudicial as to render the entire trial unfair, see United States v. Drummond, 481 F.2d 62, 64 (2d Cir.1973), it also recognizes that the ultimate issue of claimed unfairness must be resolved in view of the summation as a whole. See United States v. Marrale, 695 F.2d at 666, n. 9. Upon reviewing this summation and in light of the trial judge’s careful attention to what was being said and to the objections taken, this Court concludes that Snow was not denied due process. Lastly, petitioner objects to the prosecutor’s intimations that defense counsel had intentionally obfuscated the truth, specifically by her traditional but overblown allusions to the natural evasion tech- ñiques of the squid and octopus, and some arcane reference to skunks. (Tr. 335-36). An objection to reference to the skunk was sustained by the trial court. This Court does not find prosecutor’s remark that defense counsel were “trying to cloud the waters” as squid and octopi are reputed to do, in the entire context of this trial record, to be anything more than useless bloviation in the tradition of a television crime show. Unlike improper prosecutorial statements calculated to place the jury themselves in a position of ridicule should they accept the defense’s contentions, see, e.g., United States v. Modica, 663 F.2d 1173, 1180 (2d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982); United States v. Gonzalez, 488 F.2d 833, 836 (2d Cir.1973); United States v. Drummond, 481 F.2d at 64, the net effect of what the prosecution said here was merely to urge the jurors to ascertain the truth and decide accordingly. (Tr. 336-37). The prosecutor’s summation in its totality was not so prejudicial as to require that this conviction be vacated. Conclusion. For the foregoing reasons, the Clerk shall enter a judgment" }, { "docid": "8837733", "title": "", "text": "the words “on the evidence” hence reversal per se was not required. Second, in light of the considerable evidence supporting the conviction, the comment was not unduly prejudicial. Schartner’s per se rule has indeed been limited considerably. In United States v. Somers, 496 F.2d 723 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974), the Court stated at 740: “We have since limited Schartner to its facts; Schartner requires a per se reversal only when the prosecutor expresses an opinion on the guilt of a defendant based on evidence not in the record. . Although the remark at issue does represent a comment on evidence outside of the record, it does not constitute an opinion on the guilt [of the defendant.]” A recent ease on point, United States v. Homer, 545 F.2d 864 (3d Cir. 1976), cert. denied, 431 U.S. 954, 97 S.Ct. 2673, 53 L.Ed.2d 270 (1977), relies extensively on Somers, supra, and affirms defendant’s conviction on the theory that the prosecutor’s comments were not so gross or inflammatory as to constitute prejudicial error in light of the instructions given by the judge. Essentially the same line of reasoning applies to opening as well as closing statements. See United States v. DeRosa, 548 F.2d 464 (3d Cir. 1977) in which an appellant’s conviction was affirmed even where the government read several pages of wiretap transcripts during its opening statement. The prejudice was cured by the trial judge’s instruction to ignore, for the purposes of determining guilt or innocence, any statements made during opening by counsel. The Second Circuit has reached a similar conclusion. In United States v. White, 486 F.2d 204 (2d Cir. 1973), cert. denied, 415 U.S. 980, 94 S.Ct. 1569, 39 L.Ed.2d 876 (1974), defendant appealed from a conviction based on the prosecutor’s statement that defendant was guilty and had lied. The court, noting (with) disapproval, the statement, nevertheless affirmed the conviction since the defendant was not significantly prejudiced by the comment. In United States v. Bivona, 487 F.2d 443 (2d Cir. 1973) the court again affirmed a conviction in light of" }, { "docid": "8430910", "title": "", "text": "narcotics agents, suggests that her testimony would have corroborated the government’s case. Furthermore, this was not a case of an unknown informant. The defense knew her identity, but made no showing that any effort had been made to locate her. Under these circumstances, there was no error in the trial court’s rulings. United States v. Russ, supra; United States v. Cooke, 339 F.2d 183 (2nd Cir., 1964); see Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Affirmed. . During the cross-examination of Matranga by the prosecutor, defense counsel did request the court to caution the jury that the questions posed by counsel were not part of the evidence. This request was promptly granted. MANSFIELD, Circuit Judge (concurring in an Opinion in which Circuit Judges LUMBARD and MULLIGAN concur): I concur completely in every portion of Judge Lumbard’s thorough and carefully considered opinion. I would like to add a few words regarding appellant’s attack upon the propriety of the prosecutor’s summation. Recently we have had occasion to take prosecutors to task for improperly asserting their personal knowledge of facts or their personal belief as to the credibility of witnesses. United States v. White, 486 F.2d 204, 205-207 (2d Cir. 1973); United States v. Bivona, 487 F.2d 443, 445-448 (2d Cir. 1973) ; United States v. Santana, 485 F.2d 365, 370-371 (2d Cir. 1973); United States v. Drummond, 481 F.2d 62 (2d Cir. 1973); United States v. LaSorsa, 480 F.2d 522, 526 (2d Cir. 1973), cert, denied 414 U.S. 855, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973); United States v. Fernandez, 480 F.2d 726, 741 n.23 (2d Cir. 1973); United States v. Miller, 478 F.2d 1315, 1317 (2d Cir. 1973), cert, denied, 414 U.S. 851, 94 S.Ct. 144, 38 L.Ed.2d 100 (1973); United States v. Pfingst, 477 F.2d 177 (2d Cir. 1973), cert, denied, 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973). In at least three of these cases the prosecutor’s intemperate remarks were provoked by or responsive to improper statements made by defense counsel in his summation. See Santana, LaSorsa and Bivona, supra." }, { "docid": "13359677", "title": "", "text": "caused Atkins to fail to press his objection to the complained-of remark. Cf. United States v. Garza, 608 F.2d 659, 666 (5th Cir. 1979) (“while defense counsel could and, indeed, should have objected to the first instances of improper comment by the prosecutor, at some point the transgressions of this prosecutor cumulated so greatly as to be incurable; then objection to these extremely prejudicial comments would serve only to focus the jury’s attention on them”); Houston v. Estelle, supra [569 F.2d 372 (5th Cir. 1978)] at 381-82 (repeated instances of improper argument and improper comments on defense counsel’s successful objections may mitigate defendant’s duty to object). The inherent prejudice in Eubanks’ last remarks is evident. [T]he most important problem facing the jury was its decision to credit the testimony of .. . the [state’s] witnesses or that of [the defendant] .... The prosecutor’s comments . . . were expressly intended to influence this critical credibility choice; he introduced for the jury’s consideration his own personal opinion as to this choice, suggested the existence of information beyond that presented at trial to support his witnesses’ credibility, and sought to use the status and influence of the entire government investigatory apparatus to bolster the believability of this case. U. S. v. Garza, supra at 665-66 (footnote omitted). As Judge Rubin recognized in his separate opinion in Cronnon v. Alabama, supra [587 F.2d 246 (5th Cir. 1979)] at 252 (Rubin, concurring in the result), claims of improper jury argument necessitate judicial linedrawing. Eubanks’ argument was clearly more improper and more prejudicial than those approved in Cronnon v. Alabama, supra, and Alvarez v. Estelle, supra [531 F.2d 1319 (5th Cir. 1976)] but not nearly so egregious as that condemned in Houston v. Estelle, supra. However, the Court is convinced that Eu-banks’ final remarks, rife with suggestions that the court and defense counsel had frustrated the prosecution’s attempts to present all of the evidence and laced with his firm personal conviction of McKinney’s guilt, crossed the boundaries of constitutionality and propriety, and deprived McKinney of the fundamentally fair trial to which he was entitled. Accordingly," }, { "docid": "22806839", "title": "", "text": "which the citizen expects from the representative of his government. Hall v. United States, supra, 419 F.2d at 587. The government does not deny in its brief that the comment was improper. Here, again, defense counsel objected, but was overruled. The judge should immediately have charged the jurors that they were not to consider anyone’s reaction — the prosecutor’s or the defendant’s — to their verdict, and that the only issue before them was whether the prosecution had proven its case. In addition to the instances noted above, the summation was punctuated with excessive use of the personal pronoun “I.” More than 60 times in the summation the prosecutor introduced a sentence with “I’m telling you” or “I suggest to you.” Occasional use of such rhetorical devices is simply fair argument, United States v. Murphy, 374 F.2d 651, 655 (2d Cir.), cert. denied, 389 U.S. 836, 88 S.Ct. 47, 19 L.Ed.2d 98 (1967), but their constant use runs the risk that the jury may think the issue is whether the prosecutor is truthful, instead of whether his evidence is to be believed. A prosecutor should exercise restraint to avoid needless personal references, without sacrificing the vigor or effectiveness of his argument. In sum, the prosecutor made a number of clearly improper remarks throughout his summation, and the district court should have sustained appellant’s objections to those comments. B. The Absence of Substantial Prejudice Appellant asserts that the cumulative effect of the improper statements was to deny him a fair trial. A prosecutor’s improper summation results in a denial of due process when the improper statements cause substantial prejudice to the defendant. See, e. g., United States v. Bivona, supra, 487 F.2d at 444; United States v. White, 486 F.2d 204, 205 (2d Cir. 1973), cert. denied, 415 U.S. 980, 94 S.Ct. 1569, 39 L.Ed.2d 876 (1974); cf. United States v. Morris, supra, 568 F.2d at 402. Often, the existence of substantial prejudice turns upon the strength of the government’s case: if proof of guilt is strong, then the prejudicial effect of the comments tends to be deemed insubstantial; if proof" }, { "docid": "4959538", "title": "", "text": "for the seller. Obviously, the jury did not view the circumstances that way. At any rate, the record does not warrant impinging on the jury’s discretion. See id. The Prosecutor’s Summation The prosecutor’s comments in his summation about Donaldson’s failure to call his wife and Robert Tave as witnesses to support his agency defense and the prosecutor’s vouching for the credibility of the State’s witnesses, particularly Robert Tave, may very well have been improper. See, e. g., People v. Mirenda, 23 N.Y.2d 439, 457, 245 N.E.2d 194, 203-04, 297 N.Y.S.2d 532, 546 (1969). Furthermore, prosecutorial misconduct is cognizable on a petition for a writ of habeas corpus. Mooney v. Holohan, 294 U.S. 103, 112-13, 55 S.Ct. 340, 341-42, 79 L.Ed. 791 (1935); United States ex rel. Meers v. Wilkins, 326 F.2d 135, 136 (2d Cir. 1964). Such misconduct must be egregious, however, before it will be deemed to rise to the level of a due process violation and thus to warrant the granting of a petition. See, e. g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (prosecutor withheld exculpatory evidence); United States ex rel. Meers v. Wilkins, supra (same). Prosecutorial statements, even though they may be improper or unethical, are usually not enough to warrant granting a petition. See Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); Ketchum v. Ward, 422 F.Supp. 934, 944 (W.D.N.Y.1976), aff’d mem., 556 F.2d 557 (2d Cir. 1977) (citing Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). In the instant case, since the defense summation included a strenuous attack on Robert Tave’s credibility, it was understandable, if improper, that the prosecutor responded by asserting Tave’s truthfulness. At any rate, in the context of the entire trial, neither these comments nor the comments on Donaldson’s failure to call certain witnesses appear to be “so prejudicial” that they render the trial “fundamentally unfair.” Alvarez v. Estelle, 531 F.2d 1319, 1323 (5th Cir. 1976), cert. denied, 429 U.S. 1044, 97 S.Ct. 748, 50 L.Ed.2d 757 (1977). Cross-examination Regarding Motive to" }, { "docid": "22852278", "title": "", "text": "said and whatever counsel for the defendants may say is not evidence. The evidence that you will consider in reaching your verdict is what you hear from the witnesses who will be presented to you.” Again, at the close of the case, the Court reminded the jury to treat the argumerits of counsel as devoid of evidentiary content. Our review of the record convinces us that whatever prejudicial effect there may have been was neutralized. In addition to the curative statements made by the District Judge, the jury was also instructed by the prosecutor that his comments were not to be considered as evidence (see n.25, supra). Furthermore, the length of the trial (almost three months) serves to minimize the effect of comments made at the very beginning of the proceedings. See Frazier v. Cupp, 394 U.S. 731, 736, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); cf. United States v. Kravitz, 281 F.2d 581 (3d Cir. 1960), cert. denied, 364 U.S. 941, 81 S.Ct. 459, 5 L.Ed.2d 372 (1961); United States v. White, 486 F.2d 204 (2d Cir. 1973); see also Singer, Forensic Misconduct by Federal Prosecutors — and How it Grew, 20 Ala.L.Rev. 227, 239-242 (1968). Though the remarks were improper, we do not believe that the characterizations in the Government’s opening played any real part in convicting the defendants. Accordingly, we reject this ground for a new trial. Alluding to the fact that the jury eventually acquitted him on the conspiracy counts, appellant Somers charged that references in the opening statement to his complicity in the conspiracies deprived him of a fair trial. We disagree. We know of no rule of law that requires a mistrial merely because the jury does not believe that a prosecutor’s outline (presented in an opening statement) is true beyond a reasonable doubt. Provided that the outline is an objective summary of evidence which the Government reasonably expects to produce, a subsequent failure in proof will not lead to an automatic finding of misconduct. Cf. Frazier v. Cupp, 394 U.S. 731, 736, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). Inasmuch as there is" }, { "docid": "7962469", "title": "", "text": "United States v. Modica, supra. See United States v. White, 486 F.2d 204, 206 (2d Cir.1973), cert. denied, 415 U.S. 980, 94 S.Ct. 1569, 39 L.Ed.2d 876 (1974), upholding conviction where prosecutor’s summation had charged twice that defendant was “lying” and repeatedly asserted that the defense was “fabricated” — e.g., “the defendant has fabricated these incidents in order to bolster a specious, meritless argument.” Id. at 206 n. 7. . In response to Alphonse’s motion for a mistrial based on this part of the government’s summation, the following colloquy occurred: Ms. Giacalone [Assistant United States Attorney]: Your Honor, what I did, I believe was entirely appropriate in light of the defense taken in this case. The defense was a very pointed one. In another case this summation would not have been appropriate. In this case the defense was Alphonse Marrale is too dumb to have committed this crime. The Court: Actually, that was the defense. Mr. Goldberg: I did not inject my view— The Court: The way you went at it. Mr. Goldberg: Absolutely, and I stand by it. How does it justify a response— The Court: In light of the trial of this case, I don’t find anything in Miss Giacalone’s summation which was prejudicial and I am going to deny your application. (Tr. 997-98.) . Even the language in the examples quoted did not necessarily result in reversal of the defendants’ convictions. In United States v. Modica, supra, we found that in all the circumstances the statements had not denied the defendant a fair trial and thus did not warrant reversal. The convictions in United States v. Gonzalez, supra, and United States v. Drummond, supra, were reversed, although in Gonzalez the reversal was based on “the combination of’ prosecutor’s statements and an error in the jury charge. See also United States v. White, supra note 9." }, { "docid": "22806840", "title": "", "text": "whether his evidence is to be believed. A prosecutor should exercise restraint to avoid needless personal references, without sacrificing the vigor or effectiveness of his argument. In sum, the prosecutor made a number of clearly improper remarks throughout his summation, and the district court should have sustained appellant’s objections to those comments. B. The Absence of Substantial Prejudice Appellant asserts that the cumulative effect of the improper statements was to deny him a fair trial. A prosecutor’s improper summation results in a denial of due process when the improper statements cause substantial prejudice to the defendant. See, e. g., United States v. Bivona, supra, 487 F.2d at 444; United States v. White, 486 F.2d 204, 205 (2d Cir. 1973), cert. denied, 415 U.S. 980, 94 S.Ct. 1569, 39 L.Ed.2d 876 (1974); cf. United States v. Morris, supra, 568 F.2d at 402. Often, the existence of substantial prejudice turns upon the strength of the government’s case: if proof of guilt is strong, then the prejudicial effect of the comments tends to be deemed insubstantial; if proof of guilt is weak, then improper statements are more likely to result in reversal. Compare United States v. Gallagher, supra, 576 F.2d at 1042 — 43 and United States v. Benter, 457 F.2d 1174, 1178 (2d Cir.), cert. denied, 409 U.S. 842, 93 S.Ct. 41, 34 L.Ed.2d 82 (1972) with Berger v. United States, supra, 295 U.S. at 88-89, 55 S.Ct. at 633 and United States v. Burse, supra, 531 F.2d at 1155. More comprehensively, however, determining the existence of substantial prejudice involves three factors: the severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper statements. See generally Vess, Walking a Tightrope; A Survey of Limitations on the Prosecutor’s Closing Argument, 64 J.Crim.L. & Criminology 22, 54-55 (1973). The first question is whether the improper comments were “minor aberrations in a prolonged trial” or “cumulative evidence of a proceeding dominated by passion and prejudice.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240, 60 S.Ct. 811, 852, 84 L.Ed. 1129 (1940); see, e. g.," }, { "docid": "14467222", "title": "", "text": "of granting a continuance: “postponement of a trial of such urgent proportions could seriously jeopardize important interests in its resolution.” 662 F.2d at 117. Given the latter reference, it is clear the venue comment in San Juan Star falls short of supporting appellants’ argument that, in Puerto Rico, a continuance is the preferred mechanism for shielding criminal trials from the effects of adverse publicity. While we recognize the problems associated with a change in venue, it remains a feasible option for a Puerto Rico accused confronted with publicity at home. Courts have held that a motion for a change of venue is the preferred remedy where a community has been saturated with publicity adverse to the defendant. Finnegan v. United States, 204 F.2d 105, 110 (8th Cir.) (“[Njewspaper publicity tending to excite public prejudice against a defendant is not usually considered as a sufficient reason for granting an application for continuance____ [Tjhere was no application for a change of venue, which is usually considered the correct remedy in such situations.”), cert. denied, 346 U.S. 821, 74. S.Ct. 36, 98 L.Ed. 347 reh. denied, 346 U.S. 880, 74 S.Ct. 118, 98 L.Ed. 387 (1953). See also Dennis v. United States, 302 F.2d 5, 8 (10th Cir.1962) (“In ruling on Travis’ pretrial motions for severance and continuance on the grounds of prejudicial publicity, the trial court indicated that the proper remedy was change of venue, and invited such motion.”), rev’d on other grounds, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). Cf. United States v. Pfingst, 477 F.2d 177, 185-86 (2d Cir.) (fact that “[ajppellant never moved for a change of venue” supports trial judge’s denial of motion for new trial based on prejudicial publicity), cert. denied, 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973). Application for a continuance rather than a change of venue is particularly disfavored where, as here, there is little reason to believe that the prejudicial publicity complained of will abate within a foreseeable period: The denial of a motion for an indefinite or substantial continuance predicated upon widespread adverse pretrial publicity about a" }, { "docid": "4959539", "title": "", "text": "83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (prosecutor withheld exculpatory evidence); United States ex rel. Meers v. Wilkins, supra (same). Prosecutorial statements, even though they may be improper or unethical, are usually not enough to warrant granting a petition. See Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); Ketchum v. Ward, 422 F.Supp. 934, 944 (W.D.N.Y.1976), aff’d mem., 556 F.2d 557 (2d Cir. 1977) (citing Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). In the instant case, since the defense summation included a strenuous attack on Robert Tave’s credibility, it was understandable, if improper, that the prosecutor responded by asserting Tave’s truthfulness. At any rate, in the context of the entire trial, neither these comments nor the comments on Donaldson’s failure to call certain witnesses appear to be “so prejudicial” that they render the trial “fundamentally unfair.” Alvarez v. Estelle, 531 F.2d 1319, 1323 (5th Cir. 1976), cert. denied, 429 U.S. 1044, 97 S.Ct. 748, 50 L.Ed.2d 757 (1977). Cross-examination Regarding Motive to Falsify Testimony During the trial testimony of another DEA special agent, Edmund Cremin, defense counsel sought to cross-examine the witness on “whether he attempted to get from Mr. Donaldson certain information and assured him that cooperation would make things easier on him.” The trial judge refused to allow the cross-examination on that subject on the ground that it was irrelevant. Defense counsel objected to the ruling, arguing that the testimony would be relevant to the witness’s motive to arrest Donaldson. On appeal and in his petition, Donaldson argued that the testimony would have been relevant to the witness’s motive to falsify his testimony. Petitioner may be barred from raising a different ground on appeal or in a habeas corpus petition from the one on which he objected originally. See Blood-good v. Lynch, 293 N.Y. 308, 56 N.E.2d 718 (1944). See also Wainwright v. Sykes, 433 U.S. 72, 85-91, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977). Aside from the problem of the trial judge’s lack of opportunity to rule on the objection as now presented," }, { "docid": "1564354", "title": "", "text": "negligent in failing to record the correct names and addresses of the purported witnesses, or to locate them, in the absence of proof that the police knew that any such persons had information exculpatory or helpful to the defense, presents no issue of constitutional dimension under Brady. The petitioner further charges that the District Attorney repeatedly made prejudicial and improper objections, proffers of proof, and comments upon the evidence; that the court improperly commented upon testimony and led witnesses to change their answers; that the defendant upon his arrest was handled improperly and that the court’s instruction as to a lesser included offense than that charged in the indictment was erroneous. This Court finds, upon review of the record and consideration of petitioner’s brief in the Appellate Division, that, apart from the fact that alone or in totality the alleged errors do not constitute any violation of federal constitutional rights, they are so piddling and of a nitpicking nature as not to merit the dignity of discussion. Accordingly, the petition for the issuance of a writ of habeas corpus is denied upon the merits. . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (prosecutor’s comments); Malley v. Manson, 547 F.2d 25 (2d Cir. 1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1335, 51 L.Ed.2d 598 (1977); United States ex rel. Castillo v. Fay, 350 F.2d 400 (2d Cir. 1965), cert. denied, sub nom. Castillo v. Fay, 382 U.S. 1019, 86 S.Ct. 637, 15 L.Ed.2d 533 (1966); Volpicelli v. Salamack, 447 F.Supp. 652 (S.D.N.Y.), aff’d, 578 F.2d 1372 (2d Cir. 1978); United States ex rel. Craft v. Lefevre, 432 F.Supp. 93 (S.D.N.Y.1977); see United States ex rel. Santiago v. Follette, 298 F.Supp. 973, 974 (S.D.N.Y. 1969) (“[T]he writ of habeas corpus is not available to review errors in a state trial in the admission of evidence, alleged prejudicial statements in the Court’s charge or in the prosecutor’s summation absent a showing that they deprived defendant of a fundamentally fair trial.” (citations omitted.)) . Cf. Picard" }, { "docid": "23110213", "title": "", "text": "we stated above, the outcome of Frederick’s case was dependent almost entirely on the testimony of S.F., which was at times unclear and inconsistent. The prosecutor’s impermissible remarks could have helped to establish S.F.’s credibility in the minds of the jury, thus affecting their verdict. We have often found that vouching is an error that is potentially prejudicial. In Roberts we stated, “[vjouehing for a government witness in closing argument has often been held to be plain error, reviewable even though no objection was raised.” Roberts, 618 F.2d at 534. See also Kerr, 981 F.2d at 1054 (“[W]e find that the repeated instances of prosecutorial vouching affected the jury’s verdict____ [and w]e reverse for plain error.”); United States v. Smith, 962 F.2d 923, 933 (9th Cir.1992) (reversing under plain error for prosecutorial vouching). Here we do not have repeated instances of prosecutorial vouching, but we do have the improper admission of the witness’ statement that S.F. told the same story to the law enforcement officer investigating the case and the prosecutor’s erroneous representation to the jury that the officers testified that S.F. had done so. While the latter error is particularly serious, again we need not decide whether these errors standing alone would require a reversal of the convictions under the plain error standard, which we employ when reversing on the ground of unobjected-to prosecutorial vouching. Prosecutorial Comments About Defense Counsel Frederick contends that he was further prejudiced by the prosecutor’s three related, impermissible attacks on the defense attorney during closing argument. “When prosecutorial conduct is called in question, the issue is whether, considered in the context of the entire trial, that conduct appears likely to have affected the jury’s discharge of its duty to judge the evidence fairly.” United States v. Simtob, 901 F.2d 799, 806 (9th Cir.1990) (citing United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985)). Frederick asserts that he was prejudiced by the following series of comments made about his attorney during the prosecutor’s summation: Finally, [S.F.], on cross-examination, there is no doubt that it is a defense attorney’s" }, { "docid": "12014252", "title": "", "text": "the combatants clutch the other by the throat, but could not recall whether White or Goodson was the assailant. Only Eddie Wright stated conclusively that he saw Goodson’s hands on White’s neck. Wright, however, saw this occur only once, not three times as White claimed. . Q. I am asking you whether he was threatening you at the time you shot him? A. No, he was not. Q. He was not? A. No. . In at least six cases in the last six months appellants have included allegations of prosecutorial misconduct at trial among their claims of error on appeal. See United States v. Santana, 485 F.2d 365, 370-371 (2d Cir. 1973) (prosecutor’s remarks in summation justified as responsive to defense allegations); United States v. Drummond, 481 F.2d 62 (2d Cir. 1973) (conviction reversed because of prejudicial statements by Assistant United States Attorney) ; United States v. LaSorsa, 480 F.2d 522, 526 (2d Cir. 1973), cert, denied (1973), 414 U.S. 855, 94 S.Ct. 157, 38 L.Ed.2d 105 (prosecutor’s comments in summation justified as responsive to defense counsel’s charges) ; United States v. Fernandez, 480 F.2d 726, 741 n. 23 (2d Cir. 1973) (prosecutor’s summation criticized) (conviction reversed on other grounds) ; United States v. Miller, 478 F.2d 1315, 1317 (2d Cir. 1973), cert, denied (1973), 414 U.S. 879, 94 S.Ct. 61, 38 L.Ed.2d 125 (prosecutor’s remarks in summation were “ill conceived” but not prejudicial) ; United States v. Pfingst, 477 F.2d 177 (2d Cir. 1973), cert, denied (1973), 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (improper statement by prosecutor during presentation of evidence cured by trial judge’s strong corrective measures). See also United States v. Archer, 486 F.2d 670 (2d Cir. 1973) (investigative tactics criticized). . White claims also that he was prejudiced by the prosecutor’s misstatements of the evidence and exaggeration of the strength of the government’s case. Our careful scrutiny of the record indicates that the sole factual defect in the summation was the prosecutor’s suggestion that White had walked “calmly” to his locker to secure his gun. The record, however, is bare of evidence on" }, { "docid": "20811781", "title": "", "text": "I’m not telling them what happened. I’m suggesting. THE COURT: You are asking them to speculate— MS. SHIELS: Not speculation. THE COURT: It is speculation. You feel this is what could have happened, not permitted to do that. I will not allow that. That’s it.” (Tr. at 324-26). This was a permissible response to a hypothesis previously posited by defense counsel in their summations to the effect that absence of any part of the loot suggested misidentification of Snow as the perpetrator. See, e.g., United States v. Marrale, 695 F.2d 658, 667 (2d Cir.1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983); United States v. LaSorsa, 480 F.2d 522, 526 (2d Cir.), cert. denied, 414 U.S. 855, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973). The trial court took great care to mitigate the potentially prejudicial effect of these comments and in so doing protected the petitioner’s constitutional right to a fair trial. See Donnelly v. DeChristoforo, 416 U.S. at 644, 94 S.Ct. at 1872. The petitioner’s last two contentions accuse the prosecutor of improperly denigrating the defense case. First, the petitioner objects to comments about the defense witnesses’ credibility and to insinuations that they had lied. This claim cannot be sustained. Although the Court of Appeals has recognized that some comments on the credibility of defense witnesses may be so prejudicial as to render the entire trial unfair, see United States v. Drummond, 481 F.2d 62, 64 (2d Cir.1973), it also recognizes that the ultimate issue of claimed unfairness must be resolved in view of the summation as a whole. See United States v. Marrale, 695 F.2d at 666, n. 9. Upon reviewing this summation and in light of the trial judge’s careful attention to what was being said and to the objections taken, this Court concludes that Snow was not denied due process. Lastly, petitioner objects to the prosecutor’s intimations that defense counsel had intentionally obfuscated the truth, specifically by her traditional but overblown allusions to the natural evasion tech- ñiques of the squid and octopus, and some arcane reference to skunks. (Tr. 335-36). An" }, { "docid": "6033395", "title": "", "text": "that “[t]he rele vant question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)); Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir.1991). See also, United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2d Cir.1973) (racially biased summation remarks violated due process rights of defendant). We have previously held that “[w]e must examine the remarks in the context of the entire trial to determine whether the prosecutor’s behavior amounted to prejudicial error. In determining whether there is prejudicial error we look at three factors: the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the misconduct.” Strouse v. Leonardo, 928 F.2d 548, 557 (2d Cir.1991); see Bentley v. Scully, 41 F.3d 818, 824 (2d Cir.1994), cert. denied, — U.S. -, 116 S.Ct. 1029, 134 L.Ed.2d 107 (1996). In assessing whether Agard’s right to due process has been violated, then, we first examine the severity of the prosecutor’s misconduct. The State argues that the comments were “brief and isolated” and therefore not severe. See Bentley, 41 F.3d at 825. Yet, the length of the commentary is not automatically decisive. As the late Judge Frank once said, “[improper prosecutorial summation] remarks [have not been deemed] harmless because compressed into a single sentence, for experience teaches that a poisonous suggestion of that kind needs no elaboration.” United States v. Antonelli Fireworks Co., 155 F.2d 631, 646 (2d Cir.1946) (Frank, J. dissenting) (footnote omitted). A comment which directly disparages the defendant’s exercise of constitutional rights can be severe misconduct regardless of its length. More important to due process analysis are the nature and effect of the remarks. Under other circumstances, a prosecutor’s closing commentary upon a witness’ opportunity to fabricate testimony might only implicate state evidentiary law; when the witness in question is the defendant, however, and the commentary goes" }, { "docid": "12014253", "title": "", "text": "defense counsel’s charges) ; United States v. Fernandez, 480 F.2d 726, 741 n. 23 (2d Cir. 1973) (prosecutor’s summation criticized) (conviction reversed on other grounds) ; United States v. Miller, 478 F.2d 1315, 1317 (2d Cir. 1973), cert, denied (1973), 414 U.S. 879, 94 S.Ct. 61, 38 L.Ed.2d 125 (prosecutor’s remarks in summation were “ill conceived” but not prejudicial) ; United States v. Pfingst, 477 F.2d 177 (2d Cir. 1973), cert, denied (1973), 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (improper statement by prosecutor during presentation of evidence cured by trial judge’s strong corrective measures). See also United States v. Archer, 486 F.2d 670 (2d Cir. 1973) (investigative tactics criticized). . White claims also that he was prejudiced by the prosecutor’s misstatements of the evidence and exaggeration of the strength of the government’s case. Our careful scrutiny of the record indicates that the sole factual defect in the summation was the prosecutor’s suggestion that White had walked “calmly” to his locker to secure his gun. The record, however, is bare of evidence on this score. If White had retreated hastily, it would have been some support for his claim of self-defense. Certainly, the statement that White walked calmly, twice mentioned by the prosecutor in summation, undermined the defense and was a characterization without basis in the record. White’s other attacks on the summation are without merit. . “One final word in this case: You must, when you enter your deliberations, decide which of the witnesses is telling the truth. The evidence in this case shows that at least one of them is lying. I suggest to you, ladies and gentlemen, that the evidence in this case shows that that man [indicating] is that one. AVhat is the evidence that shows he is lying? Well . . . .” . For example, the prosecutor charged that “the defendant has fabricated these incidents in order to bolster a specious, meritless argument.” . At oral argument — by an Assistant other than the trial Assistant — the government attempted to distinguish between the noun and verb forms of the word “lie.”" }, { "docid": "8430911", "title": "", "text": "task for improperly asserting their personal knowledge of facts or their personal belief as to the credibility of witnesses. United States v. White, 486 F.2d 204, 205-207 (2d Cir. 1973); United States v. Bivona, 487 F.2d 443, 445-448 (2d Cir. 1973) ; United States v. Santana, 485 F.2d 365, 370-371 (2d Cir. 1973); United States v. Drummond, 481 F.2d 62 (2d Cir. 1973); United States v. LaSorsa, 480 F.2d 522, 526 (2d Cir. 1973), cert, denied 414 U.S. 855, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973); United States v. Fernandez, 480 F.2d 726, 741 n.23 (2d Cir. 1973); United States v. Miller, 478 F.2d 1315, 1317 (2d Cir. 1973), cert, denied, 414 U.S. 851, 94 S.Ct. 144, 38 L.Ed.2d 100 (1973); United States v. Pfingst, 477 F.2d 177 (2d Cir. 1973), cert, denied, 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973). In at least three of these cases the prosecutor’s intemperate remarks were provoked by or responsive to improper statements made by defense counsel in his summation. See Santana, LaSorsa and Bivona, supra. Yet aside from deploring such defense tactics, we have had little or nothing to say on the subject. I think that it is high time that steps be taken to insure that defense counsel will observe their duties under the ABA Code of Professional Responsibility (1971), DR 7-106(C)(3), (4), and refrain from conduct that not only tends to goad the prosecutor into possible improprieties but to undermine respect for the administration of justice. In the present case the prosecutor’s summation was clearly within permissible bounds. However, when we look back to the defense counsel’s summation which immediately preceded it we find that appellant’s counsel repeatedly voieed his personal knowledge of facts and his personal opinion of the credibility of witnesses, in total disregard of the Code. For instance, referring to an attorney-client conference which he apparently had had with appellant before trial he stated: “However, James De Angelis didn’t come to me and say ‘Let them prove me guilty. I didn’t do it.’ He said ‘No, no. I want to tell the truth. I want" }, { "docid": "23071907", "title": "", "text": "not offered to prove the truth of their contents, they were not hearsay, Fed.R. Evid. 801(c); and the jury could consider them circumstantially to corroborate other evidence in the case. United States v. Canieso, 470 F.2d 1224, 1232 (2d Cir. 1972). PROSECUTORIAL MISCONDUCT Although the appellants claim misconduct by the prosecutor in his attempts to read from exhibits, his extended comments when making objections, and his attempt to present arguments at sentencing, a review of the record satisfies us that none of the acts complained of, either individually or cumulatively, had the effect of depriving any of the appellants of a fair trial. Both defense counsel and the prosecutor were warned and reprimanded by Judge Carter on occasion; in the give and take of a lengthy trial it is inevitable that counsel will occasionally step over the line of propriety. Contrary instructions from the court are usually adequate to correct such situations and they were quite sufficient in this case. We also reject the claim that the prosecutor caused prejudicial publicity by allowing himself to be interviewed by an NBC news team in connection with a telecast on the Bravo narcotics conspiracy which was broadcast during this trial. Pri- or to the broadcast Judge Carter properly cautioned the jury not to watch the program, and he afterwards commented to the jury on the innocuous nature of the program. The interview with the prosecutor was never shown; and there has been no showing of any possible prejudice. See United States v. Pfingst, 477 F.2d 177, 186 (2d Cir.), cert. den., 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973). IMPROPER SENTENCING Appellants argue that their sentences of 15 years’ imprisonment should be vacated because Judge Carter abused his discretion by taking a fixed mechanical ap•proach to sentencing in disregard of individual differences, by failing to consider relevant facts, particularly the sentences imposed on the Bravo defendants by Judge Cannella, and by weighing impermissible factors. Judge Carter said at the time of sentencing: Let me make clear that the sentences I am going to give will probably be the most severe" } ]

[ { "docid": "22810079", "title": "", "text": "and affirmed the initial decision of the presiding official with one modification. The presiding official had concluded that the only question was whether the petitioner had resigned on June 1, 1982, and that the voluntariness of the resignation was not in issue. The Board held that voluntariness was an issue in the ease. It then ruled: We further find, however, that [the petitioner] has not carried his burden of establishing that the resignation was involuntary. Although the record indicates that [petitioner’s] supervisor informed him that the agency would probably propose [petitioner’s] termination if he did not resign, this fact, standing alone does not constitute duress or coercion sufficient to render the resignation involuntary____ The fact that appellant was faced with two unpleasant alternatives does not make the action taken involuntary____ Thus, we conclude that the presiding official’s failure to rule on this issue did not prejudice appellant’s substantive rights and did not, therefore, constitute harmful adjudicatory error____ Therefore, we find no basis to disturb the presiding official’s finding that the resignation action was not within the Board’s jurisdiction. (Citations and record references omitted.) II In his appeal to this court, the petitioner challenges the Board’s decision on two grounds: (A) the Board improperly determined on the record that the petitioner voluntarily resigned on June 1, 1982; and (B) the Board failed to “give any weight” to the agency’s failure to comply with “certain rules set forth in the Federal Personnel Manual” dealing with resignations. A. The determination of the credibility of the witnesses is within the discretion of the presiding official who heard their testimony and saw their demeanor. Brewer v. United States Postal Service, 227 Ct.Cl. 276, 647 F.2d 1093, 1096 (1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982). Here the presiding official credited the testimony of the agency witnesses and rejected the conflicting testimony of the petitioner. That choice was one the presiding official was fully justified in making on this record. The petitioner has given no convincing reason for us to reject those credibility determinations, and we see no basis for doing" } ]

[ { "docid": "523655", "title": "", "text": "Board. After a hearing, the administrative judge found that O’Keefe engaged in improper conduct by using Cummins’ personal information without his consent, but that the penalty of removal should be mitigated to a sixty-day suspension because removal exceeded the bounds of reasonableness. O’Keefe v. United States Postal Serv., No. PH-0752-00-0022-I-1, slip op. at 12, 16 (M.S.P.B. Mar.28, 2000) (“Initial Decision”). The Postal Service then filed a petition for review with the Board, which reinstated the agency’s penalty of removal because it found O’Keefe’s conduct to be egregious and removal a reasonable penalty. O’Keefe v. United States Postal Serv., 88 M.S.P.R. 475, 478-82 (M.S.P.B.2001) (\"Final Decision\"). O'Keefe now petitions for review of the Final Decision, arguing that his conduct was not so egregious as to warrant removal and, moreover, that removal is an unreasonably harsh penalty when all of the relevant factors are considered under Douglas v. Veterans Administration, 5 MSPB 313, 5 M.S.P.R. 280, 305-06 (1981). O'Keefe also argues that the administrative judge erred by not informing him that he needed to present sworn testimony in support of his version of what happened, thus leading the judge to erroneously conclude that O'Keefe engaged in improper conduct. According to O'Keefe, who appeared pro se, the judge should have told him that his unsworn statements were not evidence. I In reviewing a final decision of the Merit Systems Protection Board, this court shall review the record and hold unlawful and set aside any agency action, findings, or conclusipns found to be-(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence;. . . 5 U.S.C. § 7703(c) (2000). \"When, as here, the decision of the full board differs from that of its presiding official [the administrative judge], this court will engage in a more searching scrutiny of the record.\" Connolly v. United States Dep't of Justice, 766 F.2d 507, 512 (Fed.Cir.1985). An agency's decision \"to dismiss a federal employee must have a `rational basis supported by substantial evidence from the" }, { "docid": "23670041", "title": "", "text": "of the evidence” is defined in 5 C.F.R. § 1201.56(c)(2) as: Preponderance of the evidence: That degree of relevant evidence which a reasonable mind, considering the record as a whole, might accept as sufficient to support a conclusion that the matter asserted is more likely to be true than not true. . The statute in 5 U.S.C. § 7703(c) refers ambiguously to this court’s review of \"agency action” to determine if it is supported by \"substantial evidence.” In view of the de novo nature of the proceeding before the MSPB, this court has concluded that it must review the agency action based on the record made to the MSPB and the MSPB findings, rather than review the agency action solely on the basis of the agency’s record. See Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). . See SSIH Equipment S.A. v. U.S. Int'l Trade Comm'n, 718 F.2d 365, 383, 218 USPQ 678, 693 (Fed.Cir.1983) (Nies, J., additional views); accord, Whitney v. SEC, 604 F.2d 676, 681 (D.C.Cir.1979). . Connolly v. Department of Justice, 766 F.2d 507, 512 (Fed.Cir.1985) (MSPB not \"guided by customary standards of appellate review\"); accord, Ommaya v. National Institute of Health, 726 F.2d 827, 831 n. 6 (D.C.Cir.1984); Curran v. Department of the Treasury, 714 F.2d 913, 915 (9th Cir.1983); Williams v. Veterans Administration, 701 F.2d 764, 765 (8th Cir.1983); Weaver v. Department of the Army, 2 MSPB 297, 298, 2 M.S.P.R. 129, 132 (1980), aff’d 669 F.2d 613 (9th Cir.1982); McDonough v. United States Postal Service, 666 F.2d 647, 648 n. 1 (1st Cir.1981). . That this result appears necessary under Universal Camera has already been recognized by the MSPB. In Weaver, 2 MSPB at 298-99, 2 M.S.P.R. at 132-33, the board stated: [T]he Board must depend heavily upon the presiding official’s assessment of witness credibility, at least when there are not other, perhaps more persuasive, indicia of credibility included in the record. For this reason, when questions of credibility are presented, due deference must necessarily be given to the assessment of the presiding official who was present to hear and observe" }, { "docid": "23670042", "title": "", "text": "of Justice, 766 F.2d 507, 512 (Fed.Cir.1985) (MSPB not \"guided by customary standards of appellate review\"); accord, Ommaya v. National Institute of Health, 726 F.2d 827, 831 n. 6 (D.C.Cir.1984); Curran v. Department of the Treasury, 714 F.2d 913, 915 (9th Cir.1983); Williams v. Veterans Administration, 701 F.2d 764, 765 (8th Cir.1983); Weaver v. Department of the Army, 2 MSPB 297, 298, 2 M.S.P.R. 129, 132 (1980), aff’d 669 F.2d 613 (9th Cir.1982); McDonough v. United States Postal Service, 666 F.2d 647, 648 n. 1 (1st Cir.1981). . That this result appears necessary under Universal Camera has already been recognized by the MSPB. In Weaver, 2 MSPB at 298-99, 2 M.S.P.R. at 132-33, the board stated: [T]he Board must depend heavily upon the presiding official’s assessment of witness credibility, at least when there are not other, perhaps more persuasive, indicia of credibility included in the record. For this reason, when questions of credibility are presented, due deference must necessarily be given to the assessment of the presiding official who was present to hear and observe the demeanor of the witnesses. Universal Camera, supra, 340 U.S. at 496, 71 S.Ct. at 468. See also Connolly, supra, at 1330 (deference required to credibility determinations)." }, { "docid": "13683348", "title": "", "text": "as a “law enforcement officer” under 5 U.S.C. § 8336(c)(1). Acknowledging .that FPI’s job description includes within petitioner’s duties “frequent trips to correctional institutions during which direct contact with inmates is common,” that Associate Commissioner Farkas certified to the OPM petitioner’s “frequent direct contact” with inmates, and that at the Board’s hearing petitioner presented evidence tending to support such contact, the presiding official nonetheless upheld the OPM’s refusal to concur. Since the dictionary defines “frequent” as “constant, habitual or regular,” the presiding official explained, “the [OPM’s] denial of concurrence does not seem to be arbitrarily made.” She made this finding, citing deference to a “reasonable” administrative interpretation of the statute, despite the fact that the OPM actually interpreted “frequent” to mean “primarily.” See note 21 infra. The full Board sustained the presiding official’s decision, relying entirely on deference to an agency’s interpretation of a statute under its administrative jurisdiction. The presiding official correctly upheld the OPM’s determination, the MSPB ruled, because the “administrative construction given statutes by an agency charged with its [sic] administration should be followed unless there are compelling indications that it is wrong.” Here, the Board explained, there are no such compelling indications, and “[t]he administrative interpretation of the word frequent to mean constant, habitual, or regular is reasonable and consistent with its literal meaning.” This petition for review followed. II. Discussion A. Scope of Review “The standards for judicial review of MSPB decisions are familiar ones.” Gipson v. Veterans Administration, 682 F.2d 1004, 1008 (D.C.Cir.1982). “[W]e are required to ‘review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be — (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence ....’” Id. (quoting 5 U.S.C. § 7703(c) (Supp. IV 1980)). Thése statutory stan- , dards, drawn from the Administrative Procedure Act, accord with settled principles of administrative law. We thus have no quarrel with the Government’s admonition that MSPB decisions generally deserve deference. The issue" }, { "docid": "22318548", "title": "", "text": "this court, will result in imposition of damages and costs upon appellant and counsel in accordance with Rule 38. AFFIRMED. . 5 C.F.R. § 1201.115 provides: The petition for review shall set forth objections to the initial decision, supported by references to applicable laws or regulations, and with specific references to the record. After providing an opportunity for response by other parties, the Board may grant a petition for review when it is established that: (a) New and material evidence is available that, despite due diligence, was not available when the record was closed; or (b) The decision of the presiding official is based on an erroneous interpretation of statute or regulation. . 5 U.S.C. § 7703(c) provides: In any case filed in the United States Court of Appeals for the Federal Circuit, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be— (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence; . Asberry’s brief indicates a desire to overturn only part of the settlement, i.e., the portion involving suspension, while retaining that portion resulting in his reinstatement. At oral argument, counsel agreed that the settlement, if overturned at all, must be overturned in its entirety and could not be re-written for the parties by the court. Whether vacating the entire settlement would be a disservice to As-berry need not be decided in view of our disposition of the case. . Asberry asserted in his March 16, 1981 letter to the MSPB that: similarly situated employees were granted leave and not charged with excessive absence; he waited four months for a hearing; excessive absence was not substantiated by his attendance record; the disciplinary action was severe and unwarranted. In his May 20, 1981 letter to the MSPB, he asserted that he was removed without exhaustion of all disciplinary measures and that his financial situation was, and continued to be, very unstable. None of those assertions" }, { "docid": "22917640", "title": "", "text": "the termination itself. Graves v. Department of Interior, [8 M.S.P.B. 175] MSPB Docket No. CH315H8010187 (October 22, 1981). Since appellant has not established jurisdiction, his appeal must be dismissed. Issue Whether the Board erred in dismissing Stokes’ appeal. OPINION (1) Stokes’ Case A probationary employee has no statutory right to appeal, 5 U.S.C. §§ 7511-7514. Under an Office of Personnel Management (OPM) regulation, 5 C.F.R. § 315.806(b), the Board will, however, consider appeals from agency actions adverse to probationary employees when those em ployees allege that those actions were the result of partisan political or marital status discrimination. After considering the evidence, the second presiding official correctly found that Stokes had not supported his allegation of marital status discrimination. Nothing of record indicates that the FAA overlooked more errors of married than of single employees. Stokes’ mere citation of two undocumented errors of married trainees was much too sketchy to constitute evidence of marital discrimination. Stokes provided no evidence that married employees were given a higher percentage of performance briefings. On the contrary, Stokes was briefed on 100% of his training sessions. Stokes’ premise that married employees were given extensions of time to “check out” is unsupported by any evidence. The record discloses no basis for Stokes’ premise that married employees were favored in rotation shift assignments. Nor was there any evidence that Stokes received less supervision than any other employee-trainee, married or single. Thus the agency successfully controverted Stokes’ factual showing made in support of his jurisdictional allegation of marital discrimination. The Board’s dismissal of the appeal was, accordingly, not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, nor was it obtained without procedures required by law, rule, or regulation having been followed, nor was it unsupported by substantial evidence. 5 U.S.C. § 7703. Phillips v. United States Postal Service, 695 F.2d 1389 (Fed.Cir. 1982). (2) Jurisdiction Having heard and considered the entire case, including the government’s proof of a non-discriminatory basis for the adverse action, the presiding official based the dismissal on “lack of jurisdiction”. Jurisdiction means the right or power of a" }, { "docid": "22924096", "title": "", "text": "in view of the agency’s legitimate concern about drug trafficking. OPINION Petitioner argues on appeal that the Postal Service failed to establish a reasonable nexus between petitioner’s misconduct and the efficiency of the service, stating that criminal actions alone do not automatically supply the nexus. Petitioner also contends that the penalty of removal in this case was disproportionate to the employee’s misconduct and therefore arbitrary and capricious. The scope of review in an appeal of a decision of the MSPB is contained in 5 U.S.C. § 7703(c) and requires this court to sustain the decision of the board unless it is found to be (1) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence. In determining whether the board’s decision is supported by substantial evidence, the standard is not what the court would decide in a de novo appraisal, but whether the administrative determination is supported by substantial evidence on the record as a whole. Brewer v. United States Postal Service, 647 F.2d 1093, 1096 (Ct.Cl.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982). We do not need to dwell at length on nexus, which the presiding official and, in turn, the board found was established by the Postal Service. We are convinced that there is substantial evidence to support this finding. The agency proved that it had a significant drug problem at the facility where petitioner worked, causing it to conduct an undercover investigation. While there was no specific evidence that this particular sale resulted in any use of drugs at the facility, as stated by the presiding official, we consider such a direct causal connection and effect on the Postal Service’s operations to be unnecessary in view of the other circumstances present. Nexus may be established either by specific evidence or, if not adequately rebutted, by the nature of the conduct if it is so egregious as to “speak for itself.” Sanders v. United States Postal Service, 801 F.2d 1328, 1332" }, { "docid": "23670032", "title": "", "text": "that the agency’s proof was sufficient with respect to two of them. The essence of Mr. Jackson’s arguments is that the board improperly substituted its judgment on credibility for that of its delegate who actually heard the evidence. Given the relationship between the board and the presiding official and the absence of any restriction by statute or regulation, there can be no question but that the board has the power to reject a presiding official’s decision in a particular case and substitute its own decision, either on the facts or on the law. There is also no question but that the board has the power in appropriate cases to substitute its judgment for that of the presiding official with respect to the credibility of witnesses. Finally, that the board’s decision differs from the presiding official’s does not alter the requirement that we evaluate the board’s final decision under the substantial evidence standard. Accord, Ommaya v. National Institute of Health, 726 F.2d 827, 831 n. 6 (D.C.Cir.1984); Curran v. Department of the Treasury, 714 F.2d 913, 915 (9th Cir.1983). The effect on our review function, where the board and the presiding official disagree on the credibility of witnesses, has not previously been addressed by this court. The analogous situation of a disagreement between the National Labor Re lations Board and one of its trial examiners was, however, considered by the Supreme Court in the landmark Universal Camera decision, in which the Court stated: We do not require that the examiner's findings be given more weight than in reason and in the light of judicial experience they deserve. The “substantial evidence” standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report," }, { "docid": "8439189", "title": "", "text": "the two showings under which the MSPB may grant review under 5 C.F.R. § 1201.115 (1983), the Board nonetheless may grant review under 5 C.F.R. § 1201. 117. Id. at 1173. That provision permits the Board to reopen or reconsider a presiding official’s decision on its own motion. Under Dunning’s clear teaching, the MSPB appropriately followed those procedures in granting review in this case. Petitioner’s argument that the MSPB may not substitute its findings for those of the presiding official must likewise be rejected. It is clear that the Board may substitute its judgment for that of the presiding official. See Williams v. Veterans Admin., 701 F.2d 764, 765 (8th Cir.1983); McDonough v. United States Postal Service, 666 F.2d 647, 648 n. 1 (1st Cir.1982); Weaver v. Department of the Army, 2 MSPB 297 (1980), aff’d, 669 F.2d 613 (9th Cir.1982). Moreover, the fact that the Board’s findings differ from those of the presiding official does not alter the requirement that we evaluate the Board’s decision under the substantial evidence test. Dunning, 718 F.2d at 1174. This court, however, “will give hearing officers’ findings ‘the relevance that they reasonably command,’ which ‘depends largely on the importance of credibility in the particular case.’ ” See id. (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 496-97, 71 S.Ct. 456, 468-69, 95 L.Ed. 456 (1951))." }, { "docid": "395712", "title": "", "text": "must hold that the agency has satisfied its burden of persuasion on that issue. That is true of the agency’s “preponderance” burden respecting the basis for removal. Hale v. Department of Transportation, 772 F.2d 882 (Fed.Cir.1985) (where agency prima facie case of strike participation went unrebutted by petitioner, agency satisfied its burden of persuasion). It is no less true of the agency’s burden respecting reasonableness of penalty. CONCLUSION The court is persuaded that Allred’s suspension and removal were not arbitrary, capricious, an abuse of discretion, contrary to law, obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. 5 U.S.C. § 7703(c); see Hayes v. Department of the Navy, 727 F.2d 1535, 1540 (Fed.Cir.1984). Accordingly, the board’s decision sustaining Allred’s suspension and removal from his position as Supervisory Cost Accountant is affirmed. AFFIRMED. . In discussing the indefinite suspension, the presiding official cited the Board’s opinion in Martin v. Department of the Treasury, 10 MSPB 568, 574, 12 M.S.P.R. 12, 20 (1982), and made the statement about the agency's burden quoted in the dissent. We cannot agree that that statement can serve as a means for this court to find that Allred had not waived the issue he disregarded, or to substitute a new defense in which factors submitted to show no nexus are converted into factors supporting mitigation. NIES, Circuit Judge, dissenting-in-part. I respectfully dissent with respect to the disposition of the issue of mitigation of the penalty by other members of this panel. I. The lead opinion concludes that the issue of mitigation should not be considered because it was not argued during the hearing before the presiding official, in effect, holding the issue to have been waived. Allred did raise the issue to the presiding official. Indeed, the opinion of the presiding official specifically states that “the agency must establish that a lesser penalty would be ineffective under the circumstances of the particular case.” The presiding official apparently did not find it necessary to go on to discuss mitigation in her opinion because she ruled in favor of Allred on" }, { "docid": "22345328", "title": "", "text": "to establish that he was denied retention to which he was otherwise entitled under 5 C.F.R. 351.303 and the agency is unable or unwilling to refute such evidence by showing it to be untrue or that his retention standing would not have provided such benefit, the appellant would prevail. Certain Former Community Services Administration Employees v. Department of Health and Human Services, MSPB Docket No. ATO3518210251 at 21-22 (June 18, 1984) (footnote omitted). II. This court’s review of decisions of the Merit Systems Protection Board is narrowly defined by statute. The Board’s decision must be affirmed unless it is found to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1982); Hayes v. Department of the Navy, 727 F.2d 1535 (Fed.Cir. 1984); Phillips v. United States Postal Service, 695 F.2d 1389 (Fed.Cir.1982). Absent evidence to the contrary, retirement is presumed to be a voluntary act. Christie v. United States, 518 F.2d 584, 587, 207 Ct.Cl. 333, 338 (1975); Federal Personnel Manual (FPM) Supp. 752-1, sub-chapter S1-2(a)(1). Voluntary action initiated by the employee preeludes a subsequent appeal to the MSPB. 5 C.F.R. § 752.401(c)(3) (1984). To determine whether a retirement is voluntary, a court must examine “the surrounding circumstances to test the abili ty of the employee to exercise free choice”. Scharf v. Department of the Air Force, 710 F.2d 1572, 1574 (Fed.Cir.1983) (citing Perlman v. United States, 490 F.2d 928, 933, 203 Ct.Cl. 397, 407-08 (1974)). The fact that an employee is faced with an inherently unpleasant situation or that his choice is limited to two unpleasant alternatives does not make an employee’s decision any less voluntary. Taylor v. United States, 591 F.2d 688, 692, 219 Ct.Cl. 86, 92 (1979); FPM Supp. 752-1, subchapter S1-2a(3). But the decision must ultimately be the employee’s decision, not the government’s; whether the employee made an informed choice is the touchstone of our analysis. The presiding official found that Covington made no allegation that his" }, { "docid": "3839233", "title": "", "text": "reversed the Addendum Decision because Ms. Price did not show that the “interest of justice” required a fee award. Final Decision, slip op. at 6-7; see 5 U.S.C. § 7703(c) (2000) (interest of justice standard). II. By statute, this court’s review of a Board’s final decision is limited. A Board decision may not be set aside unless it is: (1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedure required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c). 5 U.S.C. § 7701(g)(1) (2000) governs the award of attorney fees before the Board: [T]he Board, or an administrative law judge or other employee of the Board designated to hear a case, may require payment by the agency involved of reasonable attorney fees incurred by an employee ... if the employee ... is the prevailing party and the Board, [or] administrative law judge ... determines that payment by the agency is warranted in the interest of justice, including any ease in which a prohibited personnel practice was engaged in by the agency or iii any case in which the agency’s action was clearly without merit. “The principal constraint upon the Board’s section 7701(g)(1) discretion to determine when an award is warranted arises from the Board’s duty to exercise that discretion reasonably, which necessarily includes the duty to articulate a rational explanation for each award.” Allen v. U.S. Postal Ser., 2 MSPB 582, 592, 2 M.S.P.R. 420 (July 22, 1980). Moreover, a petitioner’s motion for an award of attorney fees must be evaluated “from the vantage point of the original presiding official.” Yorkshire v. Merit Sys. Prot. Bd., 746 F.2d 1454, 1458 (Fed.Cir.1984). This court must determine whether Ms. Price has met the “interest of justice” standard for an award of attorney fees. In Allen, the Board interpreted the “interest ;of justice” standard in section 7701(g)(1). 2 MSPB at 587-94, 2 M.S.P.R. 420. The Board found that “the Board is accorded substantial discretion in determining when an award is warranted.” Id. at 591. The" }, { "docid": "523656", "title": "", "text": "in support of his version of what happened, thus leading the judge to erroneously conclude that O'Keefe engaged in improper conduct. According to O'Keefe, who appeared pro se, the judge should have told him that his unsworn statements were not evidence. I In reviewing a final decision of the Merit Systems Protection Board, this court shall review the record and hold unlawful and set aside any agency action, findings, or conclusipns found to be-(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence;. . . 5 U.S.C. § 7703(c) (2000). \"When, as here, the decision of the full board differs from that of its presiding official [the administrative judge], this court will engage in a more searching scrutiny of the record.\" Connolly v. United States Dep't of Justice, 766 F.2d 507, 512 (Fed.Cir.1985). An agency's decision \"to dismiss a federal employee must have a `rational basis supported by substantial evidence from the record taken as a whole.'\" Mitchum v. Tenn. Valley Auth., 756 F.2d 82, 85 (Fed.Cir.1985) (quoting VanFossen v. Dep't of Hous. & Urban Dev., 748 F.2d 1579, 1580 (Fed.Cir.1984)). When all ol the agency's charges are sustained, thE agency's original penalty may neverthelesE be mitigated to a maximum reasonablE penalty when the agency's penalty is toc severe. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed.Cir.1999). The administrative judge found that the Postal Service's removal of O'Keefe was too severe a penalty because several factors weighed in favor of mitigation, including: First, while the charged act of miscon duct is serious, it is not egregious. Sec ond, the appellant's more than 28 years of service of consistently satisfactory service is a significant factor to be considered. Third, the record does not show that the appellant gained financially from his misconduct. Fourth, the appellant's potential for rehabilitation. Initial Decision at 15. The Board disagreed with the administrative judge, finding that O'Keefe's conduct was egregious~ Final Decision at 5-6. The Board's opinion, however, is based on an erroneous" }, { "docid": "22981872", "title": "", "text": "the agency asked OWCP to review its compensation award and, after a hearing, OWCP rejected petitioner’s compensation claim on the ground that the accident had never occurred. In August 1984, the Employees’ Compensation Appeals Board overturned that decision and remanded to OWCP for a de novo decision. It was then that OWCP finally terminated all petitioner’s benefits as of July 28, 1982. Minor then sought restoration to the position she had held with the Postal Service in the manner provided by 5 C.F.R. § 353.-307 (implementing 5 U.S.C. § 8151(b)). By letter of December 31, 1985, the agency denied her request because she was removed for cause after filing a false claim. Minor appealed to the Board, contending that the Postal Service had wrongfully refused to restore her to duty under 5 C.F.R. § 353.307, supra. In an initial decision (March 21, 1986), the presiding official found that Minor had been removed for cause, having filed a false claim, and not for reasons substantially related to a com-pensable injury. The presiding official therefore concluded that Minor was not entitled to restoration. On Minor’s petition for review of the initial decision, the full Board discussed the matter and upheld the presiding official’s position. 31 M.S.P.R. 369 (1986). This appeal to us followed. II. It is settled that the Board’s jurisdiction is not plenary and is limited to actions appealable to it “under any law, rule, or regulation.” 5 U.S.C. § 7701(a). See, e.g., Cowan v. United States, 710 F.2d 803, 805 (Fed.Cir.1983). Minor, of course, bears the burden of showing that the Board had jurisdiction in this matter. See 5 C.F.R. § 1201.56(a)(2). Under 5 C.F.R. § 353.307, supra, an employee who has been separated due to a compensable injury or for reasons substantially related to a compensable injury, and whose recovery takes longer than one year, is entitled to priority consideration for restoration to the position previously held, or to a position substantially equivalent. See Ruppert v. United States Postal Serv., 8 MSPB 256, 8 M.S.P.R. 593 (1981). An employee who has been denied reinstatement can properly take an appeal" }, { "docid": "23670031", "title": "", "text": "not conduct the evidentiary hearing. Under the statute (5 U.S.C. § 7701(b)), the board is authorized to delegate this part of its responsibility to administrative law judges or other qualified officials who conduct the trial-like proceedings as “presiding officials” and who make an “initial” or recommended decision to the board. This initial decision, however, is not simply a “draft.” It is served on the parties and the board and automatically will become the final decision of the board unless modified by the board sua sponte or pursuant to a petition for review. 5 C.F.R. §§ 1201.113(a) and 1201.114(a). See Connolly v. Department of Justice, 766 F.2d 507, 511-512 (Fed.Cir.1985). In the instant case, the presiding official’s initial decision did not become the board’s decision. The presiding official found that the agency failed to prove by a preponderance of the evidence any of the incidents on which it relied for taking adverse action against Mr. Jackson. The agency challenged the presiding official’s evaluation of the evidence on each of the five incidents, and the board found that the agency’s proof was sufficient with respect to two of them. The essence of Mr. Jackson’s arguments is that the board improperly substituted its judgment on credibility for that of its delegate who actually heard the evidence. Given the relationship between the board and the presiding official and the absence of any restriction by statute or regulation, there can be no question but that the board has the power to reject a presiding official’s decision in a particular case and substitute its own decision, either on the facts or on the law. There is also no question but that the board has the power in appropriate cases to substitute its judgment for that of the presiding official with respect to the credibility of witnesses. Finally, that the board’s decision differs from the presiding official’s does not alter the requirement that we evaluate the board’s final decision under the substantial evidence standard. Accord, Ommaya v. National Institute of Health, 726 F.2d 827, 831 n. 6 (D.C.Cir.1984); Curran v. Department of the Treasury, 714 F.2d 913," }, { "docid": "22643321", "title": "", "text": "limit for appealing an agency action to the Board may be waived by the Board if the petitioner demonstrates, by preponderant evidence, good cause for such waiver. See id. §§ 1201.12, .22(c), .56(a)(2)(ii). “[Wjhether the regulatory time limit for an appeal [of an agency action] should be waived based upon a showing of good cause is a matter committed to the Board’s discretion and this court will not substitute its own judgment for that of the Board.” Mendoza v. Merit Systems Protection Bd., 966 F.2d 650, 653 (Fed.Cir.1992). We review decisions of the Merit Systems Protection Board under a narrow standard prescribed by statute. We must affirm the Board’s decision to deny a good cause waiver of the subsection 1201.-22(b) filing deadline in this case unless the decision is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (1988); see Beardmore v. Department of Agriculture, 761 F.2d 677, 679 (Fed.Cir.1985), modified on other grounds, 788 F.2d 1537 (Fed.Cir.1986) (attorney fees and expenses awarded petitioner under Equal Access to Justice Act). The Board has acknowledged that its “regulations include no specific criteria for determining when good cause has been shown for waiving the time limitation on the filing of an appeal.” Alonzo v. Department of the Air Force, 4 MSPB 262, 4 M.S.P.R. 180, 184 (1980). Furthermore, the Board has also noted that policy considerations counsel against dismissals for untimely filing and militate for providing employees with a hearing on the merits of their appeals, id., 4 M.S.P.R. at 183 (citing S.Rep. No. 969, 95th Cong., 2d Sess. 24, 51 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2746, 2773), and that “broad equitable principles of justice and good conscience” should be applied in good cause determinations, id. 4 M.S.P.R. at 184. “If the employee gives a reasonable excuse for the delay, such excuse should be accepted by the presiding official, absent a showing of substantial prejudice to the agency caused by the delay in" }, { "docid": "8439188", "title": "", "text": "Third and Fifth Circuits, in concluding that section 7701 requires application of a preponderance of the evidence standard, also remanded for reconsideration of the agency’s decision under the appropriate evidentiary standard. See Stankis v. EPA, 713 F.2d 1181, 1186 (5th Cir.1983); Schramm v. Department of Health & Human Services, 682 F.2d 85, 91 (3d Cir.1982). . Although a criminal case, Kotteakos has generally been recognized as setting forth the Supreme Court’s classic discussion of the doctrine’s applicability in both civil and criminal cases. See 11 C. Wright & A. Miller, Federal Practice & Procedure § 2883, at 276-79 (1973). . Petitioner has also argued that the MSPB failed to comply with its statutory procedures in granting NIH’s petition for review from the presiding official’s decision in favor of Dr. Om-maya and in reversing the presiding official’s determination in part. Brief for Appellant at 26-31. These arguments are without merit. First, our recent decision in Dunning v. NASA, 718 F.2d 1170 (D.C.Cir.1983), makes clear that even if the presiding official’s alleged error does not fall within the two showings under which the MSPB may grant review under 5 C.F.R. § 1201.115 (1983), the Board nonetheless may grant review under 5 C.F.R. § 1201. 117. Id. at 1173. That provision permits the Board to reopen or reconsider a presiding official’s decision on its own motion. Under Dunning’s clear teaching, the MSPB appropriately followed those procedures in granting review in this case. Petitioner’s argument that the MSPB may not substitute its findings for those of the presiding official must likewise be rejected. It is clear that the Board may substitute its judgment for that of the presiding official. See Williams v. Veterans Admin., 701 F.2d 764, 765 (8th Cir.1983); McDonough v. United States Postal Service, 666 F.2d 647, 648 n. 1 (1st Cir.1982); Weaver v. Department of the Army, 2 MSPB 297 (1980), aff’d, 669 F.2d 613 (9th Cir.1982). Moreover, the fact that the Board’s findings differ from those of the presiding official does not alter the requirement that we evaluate the Board’s decision under the substantial evidence test. Dunning, 718 F.2d at" }, { "docid": "22848555", "title": "", "text": "findings, or conclusions found to be: (1)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence .... 5 U.S.C. § 7703(c) (2000). Under this standard, we will reverse the MSPB’s decision if it is not supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Brewer v. United States Postal Serv., 227 Ct.Cl. 276, 647 F.2d 1093, 1096 (Ct.Cl.1981) (quoting Consol. Edison Co. v. Nat’l Labor Relations Bd., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126, (1938)), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982). This court’s review “must determine whether, considering the record as a whole, the agency’s evidence is sufficient to be found by a reasonable factfinder to meet the evidentiary burden applicable to the particular case.” Jacobs, 35 F.3d at 1545 (quoting Bradley v. Veterans Admin., 900 F.2d 233, 234 (Fed.Cir.1990)). The question before us is not how the court would rule upon a de novo appraisal of the facts of the case, but whether the administrative determination is supported by substantial evidence in the record as a whole. Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). B. Credibility Determinations and the Relationship Between the MSPB and Its Administrative Judges The MSPB “has the power to determine questions of fact and law in the first instance,” however, under statute and by regulations it has promulgated, the MSPB may refer cases to an administrative judge to make an initial decision which only becomes final after the deadline for petition to review expires or through other procedural mechanisms. See 5 U.S.C. § 7701(b) (2000); 5 C.F.R. §§ 1201.4(a), 1201.41, 1201.111 (2002); Connolly v. United States, 766 F.2d 507, 512-13 (Fed.Cir.1985). An administrative judge “does not have an independent statutory basis for his jurisdiction. [She or he] hears only those cases referred to him by the [MSPB].” Connolly, 766 F.2d at 512 (explaining that such a scheme forecloses customary standards of appellate" }, { "docid": "14753870", "title": "", "text": "appeal for further adjudication. Drake v. Agency for Int’l Dev., 103 M.S.P.R. 524, 527-30 (2006). On January 18, 2007, following a hearing, the AJ found that while Mr. Drake had proven: (1) that his disclosure was a contributing factor in his reassignment and (2) that the agency had not shown that it would have taken the reassignment action in the absence of the disclosure, his disclosure was not a protected disclosure pursuant to 5 U.S.C. § 2302(b)(8). Consequently, the AJ denied Mr. Drake’s request for corrective action. Mr. Drake filed a petition for review of the second initial decision on February 21, 2007, which was denied on October 18, 2007. Mr. Drake timely filed this appeal. DISCUSSION This court has jurisdiction over petitions for review of MSPB decisions under 28 U.S.C. § 1295(a)(9), pursuant to the procedures in 5 U.S.C. § 7703. Accordingly, we must set aside Board decisions we find “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140 (Fed.Cir.1986). To establish a violation of the Whistleblower’s Protection Act (WPA), we require proof of four elements: (1) the acting official has the authority to take, recommend, or approve any personnel action; (2) the aggrieved employee made a disclosure protected under [5 U.S.C.] 2302(b)(8); (3) the acting official used his authority to take, or refuse to take, a personnel action against the aggrieved employee; (4) the acting official took, or failed to take, the personnel action against the aggrieved employee because of the protected disclosure. Lachance v. White, 174 F.3d 1378, 1380 (Fed.Cir.1999) (citations omitted). The AJ concluded that Mr. Drake satisfied elements 1, 3, and 4. See Drake v. Agency for Int’l Dev., No. DC-1221-06-0128-B-1, 2007 MSPB LEXIS 4612, at *15 (M.S.P.B. Jan.18, 2007) (Initial Decision) (“if the appellant’s disclosure is found to be protected, he would be entitled to corrective action”). Therefore, the only issue before us is whether the" }, { "docid": "20644113", "title": "", "text": "private.” The Board subsequently rejected Gose’s petition for review, and the decision of the AJ became final. II. DISCUSSION Gose argues that the Board committed several errors, including in its interpretation of the Postal Service regulation that prohibits employees from drinking “in a public place” while in uniform. Because we hold that the Board did err in this regard, we reverse the Board’s decision without consideration of Gose’s other assignments of error. A. Standard of Review Here we are reviewing the Board’s construction of a regulation, including its decision to defer to the interpretation proffered by the agency. See Douglas v. Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280, 287 (1981) (“[I]t is the final orders or decisions of the Board which constitute the acts of ‘the Government’ for purposes of judicial review.”). In so doing, we note as an initial matter that provisions of the ELM do in fact constitute “regulations.” See 39 U.S.C. § 401 (“The Postal Service shall have the following general powers .... (2) to adopt, amend, and repeal such rules and regulations as it deems necessary to accomplish the objectives of this title[.]”); 39 C.F.R. § 211.2(a)(2) (1988) (providing that the ELM is a part of the USPS regulations); see also Wood v. Merit Sys. Prot. Bd., 938 F.2d 1280, 1282 (Fed.Cir.1991). “This court must affirm the Board’s decision unless it is: ‘(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.’ ” Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326, 1330 (Fed.Cir.2005) (quoting 5 U.S.C. § 7703(c) (2000)). We have held that “[a]n abuse of discretion occurs where the decision is based on an erroneous interpretation of the law, on factual findings that are not supported by substantial evidence, or represents an unreasonable judgment in weighing relevant factors.” Lacavera v. Dudas, 441 F.3d 1380, 1383 (Fed.Cir.2006) (internal quotations omitted); see also O’Keefe v. U.S. Postal Serv., 318 F.3d 1310, 1314 (Fed.Cir.2002) (“The Board necessarily abuses its discretion when it rests" } ]

[ { "docid": "9795367", "title": "", "text": "from the norm, [where] the court may consider whether a departure is warranted.’ ” White, 893 F.2d at 278 (quoting U.S.S.G. Ch. 1, Pt. A, intro, comment, at 1.6). Having determined a departure is warranted because section 2L2.4 does not provide an appropriate punishment for Strickland’s offense, we next consider whether sufficient factual support exists for the district court’s conclusion that the offense involved aggravating circumstances not adequately considered by the Sentencing Commission. We therefore review for clear error the district court’s factual conclusions that Strickland obtained the passport to avoid prosecution and engaged in more than minimal planning in carrying out his offense. Strickland contends he wanted the passport for identification purposes. He was planning to marry and wanted to use the name Cowboy. Strickland, however, is unable to explain why he provided a false birth date and birth place on the passport application. In light of Strickland’s extensive criminal record, including bail-jumping and probation violations, the district court’s conclusion that Strickland intended to use the passport to avoid prosecution is not clearly erroneous. The district court’s factual finding that Strickland engaged in more than minimal planning also is not clearly erroneous. The Sentencing Guidelines define “more than minimal planning” as “more planning than is typical for commission of the offense in a simple form.” U.S.S.G. § 1B1.1 comment, (n. (l)f). The offense of making a false statement in an application for a passport typically is committed by one person alone submitting altered or stolen identification material. Here, Strickland engaged in an atypical amount of planning in his attempt to obtain a fraudulent passport. He submitted a “Not on File” certificate from the State of Mississippi. Strickland’s application for this certificate demonstrates he was preparing to engage in passport fraud for some time before he entered the post office. When the post office official informed Strickland he would have to file a birth affidavit, Strickland involved two additional people in his scheme: he caused his father to sign the false affidavit and secured a notary to attest to his father’s signature. Taken together, these facts demonstrate Strickland engaged in" } ]

[ { "docid": "14216683", "title": "", "text": "constitute more than minimal planning. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, Application Note 1(f). Because the Sentencing Guidelines identify three distinct categories that justify imposing the enhancement — more than typical planning, repeated acts and significant steps to conceal — we will address each briefly. A. More Planning than Typical Maciaga’s scheme was much less complicated and shows much less premeditation than most cases in which the enhancement has been applied. Lennick, 917 F.2d at 979 (“It is true that the courts have generally applied the ‘more than minimal planning’ enhancement provision to factual scenarios involving clear examples of repeated or complex criminal activity.”). See, e.g., United States v. Deeb, 944 F.2d 545 (9th Cir.1991), cert. denied, 112 S.Ct. 1597 60 U.S.L.W. 3688 (1992) (complicated embezzlement involving three coconspirators and two separate bank accounts); United States v. Johnson, 911 F.2d 403 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1004, 112 L.Ed.2d 1087 (1991) (theft after purchasing bolt cutters to cut lock, obtaining notice of where targeted equipment was to be stored, and disabling alarm system). The government cites numerous facts in support of the argument that this case does not represent “simple” bank larceny, but none of these defeats the contention that Maciaga committed simple crimes. The government relies heavily on the fact that Maciaga deactivated the alarm system before taking the deposits. Perhaps if Ma-ciaga had taken the security guard job with the intent of learning to deactivate the alarm in order to steal money, he would have engaged in more than typical planning. But there is no evidence of such foresight, and deactivating the alarm was part of his ordinary duties; no additional planning was required. The government compares this case to United States v. Jenkins, 901 F.2d 1075 (11th Cir.), cert. denied, —" }, { "docid": "3116707", "title": "", "text": "could act as a liaison and troubleshooter between the two. Defendant’s unique position allowed him to circumvent the Center’s checks and balances. It is clear that defendant occupied a position of trust within the Center and that he used this position both to facilitate commission of the crime and to conceal it. Therefore, the trial court has not clearly erred. II. Section 2B1.1(5) of the Guidelines mandates a two-level upward adjustment of a defendant’s base level when the offense involved more than minimal planning. “More than minimal planning” is defined in the Guidelines as more planning than is typical for commission of the offense in a simple form. “More than minimal planning” also exists if significant affirmative steps were taken to conceal the offense, ... “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, comment, (n. 1(f)). The trial court’s finding of the amount of planning involved in an offense is essentially a factual determination which will not be disturbed on appeal absent a showing that it is clearly erroneous. United States v. Sanchez, 914 F.2d 206, 207 (10th Cir.1990); United States v. Strickland, 941 F.2d 1047, 1050 (10th Cir.), cert. denied, - U.S. -, 112 S.Ct. 614, 116 L.Ed.2d 636 (1991). Mr. Williams contends that because his embezzlements were accomplished in an extremely simple manner, the trial court erred in applying the enhancement. He claims each embezzlement only took seconds to complete, and there was no need to engage in elaborate planning prior to commission of the offense. Further, he argues that use of the initials “M.L.” on one occasion does not constitute the taking of significant steps to conceal the offense." }, { "docid": "12217623", "title": "", "text": "district court’s decision to depart downward for abuse of discretion. See U.S. v. Bernal, 90 F.3d 465, 467 (11th Cir.1996). Bush’s pre-sentence report recommended sentencing based on a total offense level of thirteen. This level included an eight-level enhancement for embezzlement of more than $70,000, see U.S.S.G. § 2B1.1, a two-level increase for abuse of trust, see U.S.S.G. § 3B1.3, a two-level increase for “more than minimal planning,” see U.S.S.G. § 2B1.1, and a three-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1. At sentencing, Bush’s counsel urged the court to find a way to avoid sentencing her to a term of imprisonment. The court complied, choosing to “delete” the two-level enhancement for “more than minimal planning” that was recommended by the defendant’s presentence report and to depart further from the applicable guideline sentencing range on the ground that the embezzlement was an act of “aberrant behavior” on Bush’s part. Both of these decisions were erroneous. A. Under the guidelines, “[m]ore than minimal planning” exists if significant affirmative steps were taken to conceal the offense.... “More than minimal planning” is [also] deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, comment. (n.l(f)). In the instant case, Bush embezzled money from the credit union on three separate occasions, each involving false entries. She also took affirmative steps to conceal the embezzlement; she stopped mail from being sent to the customer whose savings she had used as collateral for the fictitious loan and, when her superiors questioned her about the loan, she told them that the customer in question had a bad memory and had apparently forgotten that she," }, { "docid": "13039834", "title": "", "text": "erred in giving a two level increase for more than minimal planning. U.S.S.G. § 2B1.1(b)(5). We review this factual determination for clear error. United States v. Williams, 966 F.2d 555, 558 (10th Cir.1992) (citations omitted). More than minimal planning is defined as “significant affirmative steps ... taken to conceal the offense.... [or] repeated acts over a period 'of time, unless it is clear that each instance was purely opportune.” U.S.S.G. § 1B1.1, comment (n.l(f)). “In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, ... several instances of taking money, each accompanied by false entries [would constitute more than minimal planning].” Id. See also Williams, 966 F.2d at 558. Defendant Chimal had access to the checks and concealed them until the time was right to make the switch for cash on the deposit slips. These actions involved repeated acts and required planning over an extended period of time. See United States v. Lee, 973 F.2d 832, 833 (10th Cir.1992) (sentencing level increase for more than minimal planning appropriate when defendant, who was customer service officer at bank, helped customers fill out deposit slips on six occasions and deposited funds in her own account); Williams, 966 F.2d at 558 (sentencing level increase for more than minimal planning was appropriate when embezzlements transpired over period of six months and involved numerous computer entries). Accordingly, the trial court's finding was not clearly erroneous. VI. Finally, Defendant argues that the trial court erred in giving a two level increase for Defendant’s abuse of a position of trust. U.S.S.G. § 3B1.3. We review for clear error. United States v. Williams, 966 F.2d 555, 556 (10th Cir.1992). The adjustment for abuse of a .position of trust may not be employed when the elements of the underlying offense include abuse of trust. U.S.S.G. § 3B1.3. Although embezzlement by definition involves an abuse of trust, embezzlement by someone in a significant position of trust warrants the enhancement when the position of trust substantially facilitated the commission or concealment of the crime. Id.; Williams, 966 F.2d at 556." }, { "docid": "22619351", "title": "", "text": "Planning Section 2Fl.l(b)(2)(A) of the Sentencing Guidelines (2000 edition) mandates a two-level increase in the offense level for a defendant who has engaged in “more than minimal planning” for the commission of the offense. The commentary to the application instructions in section 1B1.1 explains that this enhancement involves serial behavior especially in financial crimes: “More than minimal planning” means more planning than is typical for commission of the offense in a simple form. “More than minimal planning” also exists if significant affirmative steps were taken to conceal the offense .... “More than ■ minimal planning” is deemed present in any case ■ involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In a theft, going to a secluded area of a store to conceal the stolen item in one’s pocket would not alone constitute more than minimal planning. However, repeated instances of such thefts on several occasions would constitute more than minimal planning .... In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to,, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1 cmt. n. 1(f). “[Commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). The inquiry for more than minimal planning is not limited to the elements of a particular offense or the completion of the offense itself. A series of acts “that to gether constitute a single offense under a particular criminal statute does not thereby cease to be a series of acts under the ‘more than minimal planning’ guideline ...; such repeated acts indicate greater culpability and are" }, { "docid": "22619352", "title": "", "text": "embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to,, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1 cmt. n. 1(f). “[Commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). The inquiry for more than minimal planning is not limited to the elements of a particular offense or the completion of the offense itself. A series of acts “that to gether constitute a single offense under a particular criminal statute does not thereby cease to be a series of acts under the ‘more than minimal planning’ guideline ...; such repeated acts indicate greater culpability and are in fact the target of the ‘more than minimal planning’ enhancement.” Bush, 126 F.3d at 1300 n. 1. We have, for example, rejected an argument that “three separate instances of embezzlement should be deemed to be a single act for purposes of the ‘more than minimal planning’ guideline, because the separate instances of embezzlement constitute one ‘offense.’ ” Id. The enhancement requires “a more holistic view” of the defendant’s conduct “in light of the entire scheme ... engaged in by [the defendant] in order to commit the offense.” United States v. Duelos, 214 F.3d 27, 32 (1st Cir.2000). If the government proves that an offense involved repeated acts over a period of time, more than minimal planning is “deemed present.” U.S.S.G. § 1B1.1 cmt. n. 1(f). Put another way, a presumption of more than minimal planning arises whenever repeated acts over a period of time are proved. That presumption can be rebutted, however, if it is clear that each instance was “purely opportune.” If, for example, several fraudulent transactions occur over a period of two" }, { "docid": "14216682", "title": "", "text": "each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In an assault, for example, waiting to commit the offense when no witnesses were present would not alone constitute more than minimal planning. By contrast, luring the victim to a specific location, or wearing a ski mask to prevent identification, would constitute more than minimal planning. In a commercial burglary, for example, checking the area to make sure no witnesses were present would not alone constitute more than minimal planning. By contrast, obtaining building plans to plot a particular course of entry, or disabling an alarm system, would constitute more than minimal planning. In a theft, going to a secluded area of a store to conceal the stolen item in one’s pocket would not alone constitute more than minimal planning. However, repeated instances of such thefts on several occasions would constitute more than minimal planning. Similarly, fashioning a special device to conceal the property, or obtaining information on delivery dates so that an especially valuable item could be obtained, would constitute more than minimal planning. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, Application Note 1(f). Because the Sentencing Guidelines identify three distinct categories that justify imposing the enhancement — more than typical planning, repeated acts and significant steps to conceal — we will address each briefly. A. More Planning than Typical Maciaga’s scheme was much less complicated and shows much less premeditation than most cases in which the enhancement has been applied. Lennick, 917 F.2d at 979 (“It is true that the courts have generally applied the ‘more than minimal planning’ enhancement provision to factual scenarios involving clear examples of repeated or complex criminal activity.”). See, e.g., United States v. Deeb, 944 F.2d 545 (9th Cir.1991), cert. denied, 112 S.Ct. 1597 60 U.S.L.W. 3688" }, { "docid": "23374529", "title": "", "text": "than is typical for commission of the offense in a simple form. ‘More than minimal planning’ also exists if significant affirmative steps were taken to conceal the offense. ‘More than minimal planning’ is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In an assault, for example, waiting to commit the offense when no witnesses were present would not alone constitute more than minimal planning. By contrast, luring the victim to a specific location, or wearing a ski mask to prevent identification, would constitute more than minimal planning. In a commercial burglary, for example, checking the area to make sure no witnesses were present would not alone constitute more than minimal planning. By contrast, obtaining building plans to plot a particular course of entry or disabling an alarm system, would constitute more than minimal planning. In a theft, going to a secluded area of the store to conceal the stolen item in one’s pocket would not alone constitute more than minimal planning. However, repeated instances of such thefts on several occasions would constitute more than minimal planning. Similarly, fashioning a special device to conceal the property, or obtaining information on delivery dates so that an especially valuable item could be obtained, would constitute more than minimal planning. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as with several instances of taking money, each accompanied by false entries.” Sentencing Guidelines § 1B1.1, comment, (n. 1(f)). In applying the concept of “more than minimal planning,” we note that it is for the district court to make the factual determination. We will treat the district court’s determination with “due deference” and will reverse only if left “with a definite and firm conviction that a mistake has been committed.” Herrera, 878 F.2d at 1000. In" }, { "docid": "3116708", "title": "", "text": "purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, comment, (n. 1(f)). The trial court’s finding of the amount of planning involved in an offense is essentially a factual determination which will not be disturbed on appeal absent a showing that it is clearly erroneous. United States v. Sanchez, 914 F.2d 206, 207 (10th Cir.1990); United States v. Strickland, 941 F.2d 1047, 1050 (10th Cir.), cert. denied, - U.S. -, 112 S.Ct. 614, 116 L.Ed.2d 636 (1991). Mr. Williams contends that because his embezzlements were accomplished in an extremely simple manner, the trial court erred in applying the enhancement. He claims each embezzlement only took seconds to complete, and there was no need to engage in elaborate planning prior to commission of the offense. Further, he argues that use of the initials “M.L.” on one occasion does not constitute the taking of significant steps to conceal the offense. Finally, he asserts each instance of the crime was purely opportune. We reject Mr. Williams’ contentions. To complete these embezzlements, Mr. Williams was required to access and make computer entries on Mr. Mahomes’ master military pay account in the separation sections of the Finance Center. Next, using a second access code, he had to access a second computer in the payroll area to cause the checks to be issued. Last, he needed to complete several items of paperwork for each transaction. Additionally, more than minimal planning is deemed present in any case involving repeated acts over a period of time. The embezzlements at issue transpired over a period of six months and involved numerous computer entries. Finally, Mr. Williams’ use of Mitch Logan’s initials and use of his various positions within the center to conceal his activities were significant steps taken to conceal the embezzlements. Under these facts, the trial court’s finding of more than minimal planning is not clearly erroneous. AFFIRMED. . See, e.g., United States v. Hill, 915 F.2d 502, 506-07 (9th Cir.1990);" }, { "docid": "11808920", "title": "", "text": "send Thomas L. Monaco to a prison setting. ... I’m going to depart downward ... for all the reasons that [defense counsel] outlined. And the strongest reason, I think, is the fact that I wouldn’t want to have to reflect that I engaged in conduct that caused my son to stand before this Court and be criminalized. The emotions and feelings that you’re going to live with and the peace that you’re going to have to make with yourself and within your family I think is something that the sentencing guidelines didn’t take into account. The court imposed a sentence of six months home imprisonment, five years probation, $100,000 in restitution and 500 hours of community service. The United States appeals both the application of the guidelines and the court’s decision to depart downward. II. A. U.S.S.G. § 2F1.1(b)(2) requires a two level increase when the offense involved more than minimal planning. “More than minimal planning” is defined in U.S.S.G. § 1B1.1, application note 1(f), which provides, in pertinent part: “More than minimal planning” means more planning than is typical for the commission of the offense in simple form.... “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In an embezzlement, a single taking accompanied by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. The district court determined that Monaco’s planning was minimal because it was “a simple repetition of a simple plan” with “no more planning than inherent in the crime of fraud itself.” In United States v. Cianscewski, 894 F.2d 74, 82 (3d Cir.1990), we stated that the question of more than minimal planning was “better left to the district court”; nevertheless, we conclude it clearly erred in making the" }, { "docid": "16817434", "title": "", "text": "exists if significant affirmative steps were taken to conceal the offense, other than conduct to which § 3C1.1 (Obstructing or Impeding the Administration of Justice) applies. “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, comment (n. 1(f)). Although we have not yet directly addressed this point, the Eighth Circuit has specifically held that “more than minimal planning” is determined on the basis of the overall offense, not on the role of an individual offender. U.S. v. Wilson, 955 F.2d 547 (8th Cir.1992); U.S. v. West, 942 F.2d 528 (8th Cir.1991). In U.S. v. Rust, 976 F.2d 55 (1st Cir.1992), the government appealed from the sentence imposed, arguing that the district court clearly erred by finding that the offense did not involve more than minimal planning under U.S.S.G. § 2F1.1(b)(2). In reversing the sentence, the court of appeals observed: Thus, the Guidelines set out three situations, any one of which warrants an enhancement for “more than minimal planning”: eases where more planning occurs than is typical for commission of the offense in a simple form; cases involving significant affirmative steps to conceal; and cases involving repeated acts over a period of time, unless each instance was purely opportune. United States v. Maciaga, 965 F.2d 404, 407 (7th Cir.1992). U.S. v. Rust, 976 F.2d at 57. In the instant case, all three situations are present. The offense involved substantial planning in order to pass instructions from Satariano through Melton to Ivery and to establish the phony company and bank account. There were significant affirmative acts to conceal: the use of intermediaries to avoid detection" }, { "docid": "11808921", "title": "", "text": "more planning than is typical for the commission of the offense in simple form.... “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In an embezzlement, a single taking accompanied by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. The district court determined that Monaco’s planning was minimal because it was “a simple repetition of a simple plan” with “no more planning than inherent in the crime of fraud itself.” In United States v. Cianscewski, 894 F.2d 74, 82 (3d Cir.1990), we stated that the question of more than minimal planning was “better left to the district court”; nevertheless, we conclude it clearly erred in making the determination here. It is first helpful to look at the nature of Monaco’s fraud. We will assume, without deciding, that the DESI fraud was purely opportune and focus on Monaco’s conduct on the Oxy-Comm contract. It is undisputed that in late 1986 or early 1987, Monaco asked his son to prepare inaccurate labor sheets, which Monaco then had entered into NPL’s computer system. When the computer generated the progress payment request, Monaco signed it and turned it in to the DoD. Paragraph 29 of the Presentence Report, to which Monaco made no objection in the dis-triet court, indicates that over the next few months he again enlisted the efforts of his son a total of four more times, repeating the fraudulent billing scheme. The progress payment system is an honor system based largely upon voluntary compliance. While complete records must be maintained in case of an audit, payments are made directly from progress payment requests, without supporting documentation. Monaco chose to have false hours input into NPL’s computer system so that, at least ostensibly, the" }, { "docid": "12217624", "title": "", "text": "offense.... “More than minimal planning” is [also] deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, comment. (n.l(f)). In the instant case, Bush embezzled money from the credit union on three separate occasions, each involving false entries. She also took affirmative steps to conceal the embezzlement; she stopped mail from being sent to the customer whose savings she had used as collateral for the fictitious loan and, when her superiors questioned her about the loan, she told them that the customer in question had a bad memory and had apparently forgotten that she, the customer, had taken out the loan. Bush’s offense thus clearly involved “more than minimal planning.” The district court refused to impose the attendant two-level sentence enhancement, however. The court found it “peculiar that the authors of the guidelines [would] come up with an offense for embezzlement and add[ ] to that offense ... an increase based upon more than minimal planning.” “Embezzlement,” the court opined, “requires a certain amount of planning. I think it seems to be a redundancy here in the calculations.” Not only had the Sentencing Commission apparently made a mistake, the court found, but moreover, [t]he victim seems to feel that its interest would be best served by having [Bush] continue to work and repaying the loan ... and I don’t think that society derives any advantage, nor do I feel that the defendant deserves any more punishment at this point. The court erred as a matter of law in refusing to impose the sentence enhancement for “more than minimal planning” on these grounds. The Commission’s commentary, quoted supra, clearly contemplates" }, { "docid": "14732742", "title": "", "text": "involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, comment, (n. 1(f)) (emphasis added). In light of this definition and the record before the district court, the court did not err in its application of the “more than minimal planning” guideline. The facts in the stipulations fully satisfy the Guidelines’ definition set forth above. Over an eight-month period, the Hearrins created a fictitious business name, opened both a post office box and a bank account in that name, and submitted fraudulent payment requests or completed fraudulent drafts resulting in seventy payments totalling approximately $129,404. While the Guidelines’ illustration refers to embezzlement and hot to mail fraud, the references to establishing a dummy corporation and obtaining money through false bookkeeping entries are certainly instructive in this ease. Despite these stipulations and the Guidelines’ definition, the Hearrins argue that the court erred in finding more than minimal planning because the government failed to establish a benchmark against which to measure their conduct. They also argue that because mail fraud necessarily involves several acts and is never impulsive or unplanned, the court’s reasoning leads to the inevitable conclusion that all mail fraud crimes will involve “more than minimal planning.” Finally, they argue that the phrase “more than minimal planning” is inherently ambiguous and therefore, they are entitled to lenity in the court’s interpretation of the Guidelines. We are satisfied that the Guidelines themselves establish a benchmark for measuring the extent of the Hearrins’ planning, as they define “more than minimal planning” as “more planning than is typical for commission of the offense in a simple form.” Id. We do not believe that more in the nature" }, { "docid": "14732741", "title": "", "text": "have a history of criminal involvement over a long period of time other than this offense, this crime involved both planned criminal acts and a substantial time period of eight months. The court concluded that she had engaged in a pattern of criminal conduct. (Tr. Sentencing of Peggy Hearrin, E.D.Mo., Dec. 9, 1988, at 19-20). Based upon these findings, the court sentenced William Hearrin to twenty-one months imprisonment and Peggy Hearrin to four months imprisonment. I. On appeal, Peggy and William Hearrin argue that they had not engaged in “more than minimal planning” and, therefore, section 2F1.1, dealing with offenses involving fraud or deceit, does not mandate an increase of two levels over the base offense level of six. The Guidelines define “more than minimal planning,” in part, as follows: “More than minimal planning” means more planning than is typical for commission of the offense in a simple form. “More than minimal planning” also exists if significant affirmative steps were taken to conceal the offense. “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, comment, (n. 1(f)) (emphasis added). In light of this definition and the record before the district court, the court did not err in its application of the “more than minimal planning” guideline. The facts in the stipulations fully satisfy the Guidelines’ definition set forth above. Over an eight-month period, the Hearrins created a fictitious business name, opened both a post office box and a bank account in that name, and submitted fraudulent payment requests or completed fraudulent drafts resulting in seventy payments totalling approximately $129,404. While the Guidelines’ illustration" }, { "docid": "13039833", "title": "", "text": "prosecutor’s statement was an improper statement of the law. IV. In regard to sentencing, Defendant contends that the trial court erred in failing to grant a two level reduction for acceptance of responsibility. U.S.S.G. § 3El.l(a). An acceptance of responsibility determination by a district court is a question of fact reviewable under a clearly erroneous standard. United States v. Spedalieri, 910 F.2d 707, 712 (10th Cir.1990). The burden of proof is on the defendant and the quantum of proof is by a preponderance of the evidence. Id. Whether a defendant should be granted a two level adjustment for acceptance of responsibility depends upon whether a defendant “clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3E.l(a). Defendant denied any criminal wrongdoing relating to the counts charged in the indictment at trial, and she persisted in this denial following her conviction during her presentence interview. Therefore, the district court’s failure to award a two level downward adjustment was not clearly erroneous. V. Defendant next argues that the trial court erred in giving a two level increase for more than minimal planning. U.S.S.G. § 2B1.1(b)(5). We review this factual determination for clear error. United States v. Williams, 966 F.2d 555, 558 (10th Cir.1992) (citations omitted). More than minimal planning is defined as “significant affirmative steps ... taken to conceal the offense.... [or] repeated acts over a period 'of time, unless it is clear that each instance was purely opportune.” U.S.S.G. § 1B1.1, comment (n.l(f)). “In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, ... several instances of taking money, each accompanied by false entries [would constitute more than minimal planning].” Id. See also Williams, 966 F.2d at 558. Defendant Chimal had access to the checks and concealed them until the time was right to make the switch for cash on the deposit slips. These actions involved repeated acts and required planning over an extended period of time. See United States v. Lee, 973 F.2d 832, 833 (10th Cir.1992) (sentencing level increase for more" }, { "docid": "16817433", "title": "", "text": "district court to refuse to apply the upward adjustment for “more than minimal planning” under U.S.S.G. §§ 2F1.1(b)(2) and 1B1.1, in the face of the stipulation in the plea agreement that such adjustment was applicable. We review this issue de novo. The district court stated as follows: I am not going to apply the two-level enhancement. I do not feel that Mr. Ivery did more planning than typical to commit this offense, and I think other parties are far more involved in this than he. (Joint Appendix, at 83). It is apparent that the judge made his determination based on his perception of Ivery’s rolé in the offense. This is an incorrect legal standard to apply. The applicable guideline for this offense is U.S.S.G. § 2Fl.l(b)(2), which provides that “[i]f the offense involved ... more than minimal planning ..., increase by 2 levels.” “More than minimal planning” is defined as follows: “More than minimal planning” means more planning than is typical for commission of the offense in a simple form. “More than minimal planning” also exists if significant affirmative steps were taken to conceal the offense, other than conduct to which § 3C1.1 (Obstructing or Impeding the Administration of Justice) applies. “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. U.S.S.G. § 1B1.1, comment (n. 1(f)). Although we have not yet directly addressed this point, the Eighth Circuit has specifically held that “more than minimal planning” is determined on the basis of the overall offense, not on the role of an individual offender. U.S. v. Wilson, 955 F.2d 547 (8th Cir.1992); U.S. v. West, 942 F.2d" }, { "docid": "3783637", "title": "", "text": "for cash. A two-level reduction for such a person is more than generous. Now for Bean’s appeal. Guideline 2Fl.l(b)(2)(A) calls for an increase in the offense level when the offense involved “more than minimal planning”. Application Note 1(f) to Guideline 1B1.1, to which Application Note 2 of Guideline 2F1.1 points, defines this phrase: “More than minimal planning” means more planning than is typical for commission of the offense in a simple form. “More than minimal planning” also exists if significant affirmative steps were taken to conceal the offense.... “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Consequently, this adjustment will apply especially frequently in property offenses.... In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. Bean’s kite was relatively simple (two checks floated between two banks) and was not carefully planned. Because all check kiting involves multiple checks, this offense did not bear signs of unusual planning compared with other kites — although it might entail slightly more planning than materially false statements on a loan application, which also comes within the fraud guideline. The district judge wrote: “the\" court is not convinced ... that Bean’s scheme involved more planning than is typical for the commission of the offense in a simple form”. Yet the court nonetheless enhanced the offense level because, it believed, Bean tried to conceal the crime. “He took two affirmative steps of insufficient funds check writing, the second of which was taken to conceal the first transgression, and he attempted to arrange to get a personal loan from individuals in order to conceal the violation.” Neither of these events establishes an attempt to conceal the offense. Writing multiple checks does not conceal the fraud; it is the means by which" }, { "docid": "9559670", "title": "", "text": "in cases of fraud that involved \"more than minimal planning.\" \"We review a finding of `more than minimal planning' for clear error, and reverse it only if we are left `with a definite and firm conviction that a mistake has been committed.'\" United States v. Moore, 991 F.2d 409, 412 (7th Cir.1993) (quoting United States v. Lennick, 917 F.2d 974, 979 (7th Cir.1990)). Panadero argues that her conduct did not involve \"more than minimal planning' because rather than having an organized plan, she merely \"filled out paperwork in any haphazard manner.\" (Panadero Brief at 18.) But Panadero misconstrues the phrase, which is defined in Application Note 1(1) to Guidelines section 1B1.1: \"More than minimal planning\" means more planning than is typical for commission of the offense in a simple form. \"More than minimal planning\" also exists if significant affirmative steps were taken to conceal the offense •.. \"More than minimal planning\" is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. Indeed, the application note deals specifically with the crime of embezzlement, leaving little doubt that the enhancement was proper in Panadero's case: In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries. Because Panadcro engaged in \"several instances of taking money, each accompanied by false entries,\" the enhancement was clearly appropriate. IV. Departures 18 U.S.C. § 3558(b) authonires a district court to depart from the Guidelines range if: the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing commission in formulating the guidelines that should result in a sentence different from that described. We review departures \"to ensure that the grounds for the departure were appropriate, that the factual findings underlying the departure were" }, { "docid": "3116706", "title": "", "text": "position provided him to commit the crime could as easily have been taken advantage of by other employees. We believe, however, there are significant differences between Mr. Williams’ situation and that of an ordinary bank teller. The Finance Center is a restricted access area which requires employees to possess a “line badge” and pass through a secured entryway. The Center is broken up into many different limited access function areas to prevent fraud and embezzlement. In Mr. Williams’ section, the functions were divided into two groups. The line technicians can access individual accounts and make inputs to those accounts. Before any payment is issued, the changes must be approved by an auditor and then sent to the payment section. The payment section then issues the check. As an auditor, Mr. Williams had greater authority and greater access to the master military pay accounts than line technicians. Because of his expertise, special training, and the trust placed in him by his supervisors, defendant was given access to both the line and payment sections so that he could act as a liaison and troubleshooter between the two. Defendant’s unique position allowed him to circumvent the Center’s checks and balances. It is clear that defendant occupied a position of trust within the Center and that he used this position both to facilitate commission of the crime and to conceal it. Therefore, the trial court has not clearly erred. II. Section 2B1.1(5) of the Guidelines mandates a two-level upward adjustment of a defendant’s base level when the offense involved more than minimal planning. “More than minimal planning” is defined in the Guidelines as more planning than is typical for commission of the offense in a simple form. “More than minimal planning” also exists if significant affirmative steps were taken to conceal the offense, ... “More than minimal planning” is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating" } ]